# Petition for Writ of Certiorari — Cablevision Systems Corp. v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1541%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 918 ## Text Supsame Court, US. FILED No. 09-__) g -9 9 1 IAN 27 2010 OFFICE OF THE CLERK IN THE *anItam K. Suter. Clerk Supreme Court of the Gnited States CABLEVISION SYSTEMS CORPORATION, Petitioner, Vv. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI JEFFREY A. LAMKEN HENK BRANDS MOLOLAMKEN LLP Counsel of Record 600 New Hampshire PAUL, WEISS, RIFKIND, Avenue, NW WHARTON & GARRISON LLP Washington, D.C. 20037 2001 K Street, NW (202) 556-2000 Washington, D.C. 20006 (202) 223-7300 Counsel for Petitioner (Additional Counsel Listed on Inside Cover) Se ee HOWARD J. SYMONS TARA M. CORVO MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 701 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 434-7300 QUESTIONS PRESENTED Section 614 of the Communications Act, 47 U.S.C. § 534, compels cable systems to carry the program- ming of broadcast television stations — even if doing so is contrary to their editorial judgment and dis- places programming that their customers prefer. This Court nonetheless upheld that statute (often called the “must carry” statute) against a facial First Amendment challenge in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (“Turner I’), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (“Turner II”). The Court held that, for purposes of a facial challenge, the statute was sufficiently tailored to the congressional objec- tive of ensuring the continued availability of over- the-air broadcast signals for viewing by households not subscribing to cable. That conclusion crucially relied on several important findings about the in- dustry, including that cable operators possessed market power. The questions presented in this case are: i. Whether the imposition of must-carry obliga- tions is consistent with the Constitution now that the facts undergirding the Turner decisions have evaporated with the emergence of vibrant competi- tion and other dramatic market and technological changes. 2. Whether a cable operator may constitutionally be compelled to carry the programming of a broad- cast station when, in addition to the industry changes noted above, the station lacks an over-the- air audience in the area in which the station is seek- ing carriage, the broadcast station’s traditional over- the-air market is well outside of that area, the sta- Qi) tion does not need cable carriage to remain viable, the cable operator has declined carriage for legiti- mate editorial reasons, the cable operator is subject to unusually robust competition, and the carriage mandate is based in part on the content of the sta- tion’s programming. 3. Whether the order of the Federal Communica- tions Commission in this case can be sustained where it ruled (without meaningful explanation) that compelled carriage is consistent with the statu- tory requirement that carriage be ordered only where it “better effectuate[s] the [statute’s] pur- poses” and promotes “the value of localism.” 47 U.S.C. § 534(h)(1)(C). (ii) PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT In the court of appeals, Cablevision Systems Cor- poration was the only petitioner. The respondents were the Federal Communications Commission and the United States of America. WRNN License Co., LLC, was an intervenor in support of respondents. The National Association of Broadcasters was an amicus curiae in support of respondents. Cablevision Systems Corporation is a publicly traded company. It has no parent corporation. T. Rowe Price Group, Inc., owns 10% or more of Ca- blevision Systems Corporation’s Class A common stock. (11) TABLE OF CONTENTS Page: QUESTIONS PRESENTED........... i PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATE- Renta Pa eee aera a re ili TABLE OF CONTENTS ............. iv TABLE OF AUTHORITIES........... vii jigs 8 84 hy yo | a rr re 1 OPINION AND ORDERS BELOW...... 3 Pe yy S| rer 3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED......... 3 2. ERE ee Cr 3 I. Statutory and Regulatory Back- er os ete ey ek ee we 3 A. The Must-Carry Statute........ 3 B. The Turner Challenge ......... 6 II. Proceedings ii Tide Cee... es 9 A. The FCC’s Decisions........... 9 B. The Decision of the Court of Ap- ee a ee 12 REASONS FOR GRANTING THE PETI- MN ad 9-5 a awe a ee ee 15 (iv) IT. ITT. THIS COURT SHOULD DECIDE WHETHER THE CONSTITUTION PERMITS MUST-CARRY OBLIGA- TIONS TO BE IMPOSED UNDER CURRENT CONDITIONS......... A. Turner’s Factual Underpinnings Have Evaporated............. B. Whether Imposition of Must- Carry Obligations Remains Con- sistent with the Constitution Should Be Decided Now. ....... THIS COURT SHOULD DECIDE WHETHER, CONSISTENT WITH THE CONSTITUTION, CABLEVI- SION’S LONG ISLAND CABLE SYSTEMS MAY BE COMPELLED pyeoe 4s @) |. |. Rr A. Compelled Carriage of WRNN Here Cannot Be Predicated on Turner’s Rationale............ B. The FCC Order Under Review Should Be Subject to Strict Scru- ere er rane eh a de ea 8: 8 THIS COURT SHOULD DECIDE WHETHER COMPELLED CAR- RIAGE OF WRNN IS CONSISTENT WITH THE MUST-CARRY STAT- are ices Gia i rr (v) 16 17 22 25 29 32 34 APPENDICES A. B. C. Opinion of the Court of Appeals .. . Memorandum Opinion and Order of the FCC’s Media Bureau....... Memorandum Opinion and Order ee ses ce oe ee ee Order of the Court of Appeals granting petitioner’s motion for a stay of the mandate............ Order of the Court of Appeals deny- ing petitioner’s petition for rehear- ing and rehearingen banc ....... Statutory provisions............ (vi) la 27a 47a 69a 70a 72a TABLE OF AUTHORITIES CASES A-R Cable Servs. — Me., Inc. v. FCC, Civ. No. 95-134, 1995 WL 283861 (D. Me. May 10, 1995)............... Cablevision Systems Corp. v. FCC, 570 F.3d S3 (2d Cir. 2008)... ccc eees Citizens United v. FEC, No. 08-205, ship op. (U.S. Jan. 21, 2010) ........... Comcast Corp. v. FCC, 579 F.3d 1 (D.C. CS i 5 ke oe a ae a ee Conkright v. Frommert, 129 S. Ct. 1861 er a ae ek kaise Cutter v. Wilkinson, 544 U.S, 709 a a ae ere Hill v. Colorado, 530 U.S. 703 (2000) .... Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) .... Lorillard Tobacco Co. v. Reilly, 533 U.S. rey eae ae aa es hs eo Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir. 1978), affd, 440 U.S. EE ares ate a ee ib nna: Minneapolis Star & Tribune Co. v. Min- nesota Comm’r of Revenue, 460 U.S. I rare aes re ee Sabri v. United States, 541 U.S. 600 EE ar cle era ett at a a Page: 15 24 30 16 Turner Broad. Sys., Inc. v. FCC, 512 U.S. ee Cs gest tees passim Turner Broad. Sys., Inc. v. FCC, 520 U.S. 1G Cec ecco passim Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32 (D.D.C, 1993). ......... 6, 24 United States v. Carolene Prods. Co., 304 UD. ROR Ge as bins cece cece 2, 23 Washington State Grange v. Washington State Republican Party, 128 S. Ct. Be ee 16 STATUTES AND RULES 5 U.S.C. Se ee kb ee eee ee 34 28 U.B.C, SR aie ee cee cee ee 3 28 U.S.C. Bm ee ec cc ct tte we 12 47 UBS, Bae es cece ee. 24 47 UG .GL, Be en cc 1,3 47 UBM. Bere ec ces 3, 5 47 U.B.C, GE ww ec cet tcc eee 5, 21 47 U.B.C. De ee eee ccs 5, 21 47 U.B Al, Be ies cc eee ees 10 47 U.S.C. § 534(AMIMA).............. 3,5 47 U.S.C. § 5384(hM1MC)... 2... 2 ee. passim 47 U.S.C. § 534(h) 1 (CMI)... 2 10, 32 47 U.S.C. § 5384(h)(1M(O)GI). .. 2 29, 32 47 UBC ie ss ccc eee 3 OT UBD. GMD occ cc vec c ev evees ” ee ee fo ere 47 UB... ORAL) occ cesavvverees Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, § 2(a)(2) . Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, - | re on rr Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, ee oe ae ee ee a Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, 2. es ree Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, Se. os a cakes eee eee as Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, ee... ee ee eee ADMINISTRATIVE DECISIONS Broadcast Localism, Report on Broad- cast Localism and Notice of Proposed (ix) Rulemaking, 23 FCC Red 1324 RR CRA aaa at ey nr gr een 33 Cable Horizontal and Vertical Ownership Limits, Fourth Report & Order and Further Notice of Proposed Rulemak- ing, 23 FCC Red 2134 (2008), vacated on other grounds, Comcast Corp. v. FCC, 579 F.3d 1(D.C. Cir. 2009) .... 5, 21 Carriage of the Transmissions of Digital Television Broad. Stations, Notice of Proposed Rulemaking, 13 FCC Red SE oo, os a ae ee ws 19 Harron Cablevision of Mass. d/b/a Har- ron Commce’ns Corp., Memorandum Opinion and Order, 18 FCC Red aa arm Ch yas 30. Implementation of Section 4(g) of the Ca- ble Television Consumer Prot. and Competition Act of 1992: Home Shopping Station Issues, Report and Order, 8 FCC Red 5321 (1993) ...... 10 Mid-State Television, Inc., Memorandum Opinion and Order, 16 FCC Red 5525 ects o atrarere ce eee tae ee 30 (x) Petition of Cablevision Sys. Corp., Memorandum Opinion and Order, 11 FCC Red 6453 (CSB 1996), affd, Market Modifications and the New York Area of Dominant Influence, Memorandum Opinion and Order, 12 FCC Red 12262 (1997), affd, WLNY- TV, Inc. v. FCC, 163 F.3d 137 (2d RN free oy gates Bin ia 11 Petition of WRNN License Company, LLC, 22 FCC Red 21054 (2007)... ... passim WRNN License Company, LLC, 21 FCC Red 5952 (MB 2006).............. passim WRNN.-TV Assocs., 19 FCC Red 12343 I oi ns ys 5 0 oak ok a es 25 Tennessee Broad. Partners, Memoran- dum Opinion and Order, 23 FCC Red I ggg aerate yr ars a pa erat é 30 MISCELLANEOUS John Eggerton, Broadcasters Defend Spectrum From Reclamation Propos- als, Multichannel News (Oct. 26, a ace eae ae ra ea alee oe 20 Nielsen Wire, The Switch from Analog to Digital TV (Nov. 2, 2009).......... 20 R. Matthew Warner, Reassessing Turner and Litigating the Must-Carry Law Beyond a Facial Challenge, 60 Fed. Comm. L.J. 369 (2008) ............ 19 (xi) Stuart Minor Benjamin, Roasting the Pig To Burn Down the House: A Modest Proposal, 7 J. on Telecomms. & High ROGH. £5. DO GIOUS) 2 ce wees 20 Sup. Ct. R.10(c)................00-. 29 INTRODUCTION Enacted in 1992, the “must carry” statute, 47 U.S.C. § 534, requires operators of cable television systems to carry and transmit the programming of local television broadcast stations. The statute re- quires them to do so even when such carriage over- rides cable operators’ editorial judgment and dis- places programming their customers prefer. This Court nonetheless upheld the must-carry statute against a facial First Amendment attack (albeit by the slimmest of margins) in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (“Turner I’), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (“Turner II”). Since then, however, the factual underpinnings of those decisions have evaporated. Most importantly, the monopolistic nature of the cable industry that was key to this Court’s Turner decisions has been replaced by vibrant competition. In Turner I, the Court ruled that “[t}he must-carry provisions... are justified by ... the bottleneck monopoly power exer- cised by cable operators and the dangers this power poses to the viability of broadcast television.” Turner I, 512 U.S. at 661. But, as the D.C. Circuit recently determined, cable operators today “no longer have the bottleneck power over programming that concerned the Congress in 1992.” Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009). Despite that change and a host of other important market and technological developments that gut Turner’s rationale, the FCC (with the Second Cir- cuit’s approval) not only enforced the must-carry statute here, but expanded its application to a new context that cannot be reconciled with Turner’s ana- 2 lysis. In particular, the FCC forced Cablevision to carry the signal of WRNN, a distant home-shopping station with no over-the-air viewership, on its Long Island cable systems. The FCC did so despite Ca- blevision’s determination, in the exercise of its edi- torial discretion, that the programming of WRNN was not of interest to Cablevision’s audience and that carrying the station would require Cablevision to displace programming that Cablevision’s custom- ers prefer over WRNN’s programming. Neither the must-carry statute nor its application to these circumstances can be sustained. “[T]he con- stitutionality of a statute predicated upon the exis- tence of a particular state of facts may be challenged by showing ... that those facts have ceased to ex- ist.” United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938); see also Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (decision of this Court uphold- ing a statute against a facial challenge does not con- stitute precedent barring later “as-applied chal- lenges”). The factual foundations for the govern- mental override of editorial judgment contemplated by the must-carry regime have disappeared. And those foundations never could have supported the application here in any event. The time has therefore come for this Court to re- visit this area to determine whether the must-carry regime continues to be consistent with the Constitu- tion. The continuing validity of that intrusion on constitutionally protected interests and the permis- sibility of expanding its application to new contexts present precisely the kind of important constitu- tional issues that should constitute the core of this Court’s docket. For these and additional reasons stated below, review should be granted. 3 OPINION AND ORDERS BELOW The opinion of the court of appeals (Pet. App. 1la- 26a) is reported at 570 F.3d 83. The FCC’s order (Pet. App. 47a-68a) is reported at 22 FCC Rcd 21054. The order of the FCC’s Media Bureau (Pet. App. 27a-46a) is reported at 21 FCC Red 5952. JURISDICTION The court of appeals entered, its judgment on June 22, 2009. Pet. App. la. The court of appeals denied a petition for rehearing and rehearing en banc on October 29, 2009. Pet. App. 70a. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the United States Con- stitution provides in relevant part: “Congress shall make no law ... abridging the freedom of speech, or of the press....” The Fifth Amendment to the United States Constitution provides in relevant part: “[Nlor shall private property be taken for pub- lic use, without just compensation.” Portions of relevant provisions of the Communications Act of 1934, 47 U.S.C. §$§ 534, 535, are reprinted at Pet. App. 72a-96a. STATEMENT I. Statutory and Regulatory Background. A. The Must-Carry Statute. Enacted in 1992, the must-carry statute, 47 U.S.C. § 534, requires cable systems to retransmit the signals of all “local” commercial television broadcast stations. Id. § 534(a), (h)(1)(A); see also 4 47 U.S.C. § 535(a), (1) (creating an analogous car- riage regime with respect to noncommercial educa- tional stations). It requires a cable operator to do so even when, in its editorial discretion, it would choose not to carry the station, and even when car- rying the broadcast station means that the cable op- erator must drop or reposition a non-broadcast ser- vice that it believes is of more interest to its sub- scribers. Congress enacted the must-carry statute out of concern that cable posed a threat to broadcast tele- vision, and thus to the availability of video signals for households that do not subscribe to cable. “A primary objective and benefit of our Nation’s system of regulation of television broadcasting is the local origination of programming,” Congress declared. Cable Television Consumer Protection and Competi- tion Act of 1992 (“1992 Cable Act”), Pub. L. No. 102- 385, 106 Stat. 1460, § 2(a)(10). In “the absence of a requirement that [cable] systems carry local broad- cast signals,” it concluded, the “economic viability of free local broadcast television and its ability to originate quality local programming will be seri- ously jeopardized.” Jd. § 2(a)(16). Congress’s concern rested on an intricate chain of reasoning. Congress believed that cable operators had an economic incentive to exclude broadcast sta- tions from their channel line-up, lest they compete for local advertising. See id. § 2(a)(15). Ordinarily, competitive forces should prevent cable operators from acting on that incentive: a cable operator that drops a local television station with popular pro- gramming would lose customers to other providers. But Congress concluded that cable operators gener- ally faced no multichannel competition and were 5 therefore free to act on the incentive without having to fear losing subscribers. See id. § 2(a)(2). Con- gress further determined that television viewers generally stop watching off-air television after sub- scribing to cable. See id. § 2(a)(17). Dropped sta- tions, Congress believed, would therefore lose part of their audience, possibly bankrupting them. See id. § 2(a)(16). The end result, Congress feared, would be that consumers unable to afford cable would be left with fewer over-the-air stations to watch. See id. § 2(a)(12). To address this concern, Congress enacted a stat- ute to entitle stations to guaranteed cable carriage in their entire “market.” 47 U.S.C. § 534(a), (h)(1)(A). Under FCC rules implementing that stat- ute, markets comprise metropolitan areas and their surroundings. See Pet. App. 3a. For example, the New York City market at issue in this case stretches from the Catskills to near Atlantic City, and from the Poconos to Montauk. See id. Local broadcast stations are entitled not merely to carriage in the entire geographic market, but to carriage on their over-the-air channel and on the cable system’s service tier that reaches each of the system’s subscribers. See 47 U.S.C. § 534(b)(6)-(7). Thus, broadcasters are automatically entitled to carriage on the most desirable part of the cable channel line-up — the part on which programmers prefer to be carried. | See Cable Horizontal and Vertical Ownership Limits, Fourth Report & Order and Further Notice of Proposed Rule- making, 23 FCC Red 2134, 458 (2008), vacated on other grounds, Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009). 6 B. The Turner Challenge. In the immediate wake of the statute’s enact- ment, cable operators and programmers brought a facial First Amendment challenge. The district court, however, granted summary judgment against them: it held that the must-carry statute did not trigger strict scrutiny, and that the statute could survive intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993) (three-judge court).? On review, a five-Justice majority of this Court agreed that Congress’s rationale did not trigger strict scrutiny. According to the majority opinion, the must-carry statute “impose[d] burdens and con- fer{red] benefits without reference to the content of speech.” Turner I, 512 U.S. at 643. “Congress’ over- riding objective in enacting must-carry,” the Court stated, was not to favor programming of a particular subject matter, viewpoint, or format, but rather to preserve access to free television programming for the 40 percent of Americans without cable.” Jd. at 646. In rejecting calis for strict scrutiny, the Court deemed it crucial that, at that point in time, cable operators lacked competition from other providers of 2 The Turner plaintiffs brought their facial challenge in a three-judge district court pursuant to a provision making that forum available in a “civil action challenging the constitution- ality of [the must-carry statute].” 47 U.S.C. § 555(c)(1). By contrast, Cablevision has invoked the Constitution as a de- fense in an FCC enforcement proceeding and has appealed pursuant to the Hobbs Act, which provides the exclusive mechanism for obtaining review of an FCC order. See A-R Ca- ble Servs. — Me., Inc. v. FCC, Civ. No. 95-134, 1995 WL 283861, at *5 (D. Me. May 10, 1995). 7 multichannel video service. For example, the Court held that cable operators could not benefit from the principle that laws singling out particular speakers trigger strict scrutiny. According to the Court, must carry was “justified by ... the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast televi- sion.” Jd. at 661. Similarly, the Court held that, al- though laws compelling speech typically receive strict scrutiny, that principle did not trigger strict scrutiny of the must-carry statute. That was so, the Court stated, because “the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home.” Id. at 656. The Court did, however, subject the must-carry statute to intermediate scrutiny. See id. at 662. Thus, the Court held, must carry’s defenders were required to show that the statute “furthers an im- portant or substantial governmental interest,” and that must carry’s burden on speech is “no greater than is essential to the furtherance of that interest.” Id. (internal quotation marks omitted). Applying that standard, the Court held that it was not enough for must carry’s defenders to show that must carry promotes abstract goals, such as “the widespread dissemination of information from a multiplicity of sources.” Jd. Rather, the Court re- quired a concrete showing that “recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and ma- terial way.” Id. at 664. That meant that must carry’ defenders had to prove that; without must carry, “significant numbers of broadcast stations 8 will be refused carriage on cable systems,” and “broadcast stations denied carriage will either dete- riorate to a substantial degree or fail altogether.” Id. at 666. Finding that the record evidence did not support such a finding, the five-Justice majority held that the district court had erred by entering summary judgment. See id. at 668. Four Justices (Justice O’Connor, joined by Jus- tices Scalia, Thomas, and Ginsburg) dissented. They would have invalidated the statute outright. In her dissenting opinion (joined by the three other dissenters), Justice O’Connor stated that must carry’s preferential treatment of broadcasters was content-based: it reflected a _ strict-scrutiny- triggering preference for the kind of speech engaged in by broadcast stations over that engaged in by non-broadcast video services. See id, at 675-82. Moreover, the dissenting Justices concluded, must carry was so overbroad that it would fail even in- termediate scrutiny: it required carriage even in the many instances in which a carriage refusal was not “motivated by anticompetitive impulses” and would not “lead to the broadcaster going out of business.” Id. at 682. Justice Ginsburg likewise filed a dissent- ing opinion stating that must carry triggered strict scrutiny and could not survive intermediate scru- tiny. See id. at 685-86. Following a remand in which the record was am- plified, the Court again reviewed the statute. This time, it upheld the statute by a 5-4 vote, with no opinion garnering the full approval of a majority of Justices. A four-Justice plurality concluded that the record now supported the conclusions that “cable operators had considerable and growing market power,” Turner IJ, 520 U'S. at 197; that they had an 9 incentive to use that power to favor cable- programming services that they owned or on which they could sell advertising, id. at 198, 200; and that stations denied carriage would “deteriorate to a sub- stantial degree or fail altogether,” id. at 208 (inter- nal quotation marks omitted). In a separate concurrence that supplied the fifth vote, Justice Breyer similarly concluded that the evidence showed that “a cable system ... at present (perhaps less in the future ) typically faces little com- petition, [and] that it therefore constitutes a kind of bottleneck that controls the range of viewer choice.” Id. at 227-28 (emphasis added). Justice Breyer con- cluded that, “without the statute, cable systems would likely carry significantly fewer over-the-air stations, that station revenues would therefore de- cline, and that the quality of over-the-air program- ming on such stations would almost inevitably suf- fer.” Id. at 228 (citations omitted). Again, four Justices dissented. Justice O’Connor, in a dissenting opinion joined by Justices Scalia, Thomas, and Ginsburg, explained that the remand record showed that only marginal stations were at risk. See id. at 233. Arguments that these stations’ programming content deserved protection, the dis- senters explained, fortified the conclusion that the must-carry scheme was content-based. See id. at 233-35. In addition, Justice O’Connor urged, the majority’s intermediate-scrutiny analysis reached the wrong result. See id. at 235-57. II. Proceedings in This Case. A. The FCC’s Decisions. WRNN is a television station licensed to King- 10 ston, New York, which lies at the very northern tip of the giant New York City television market. WRNN broadcasts mostly home-shopping program- ming. See Pet. App. 17a.5 Traditionally, WRNN’s broadcast signal reached only Kingston and its sur- roundings. After must carry’s enactment, WRNN nonetheless sought carriage far beyond that area. As part of that effort, WRNN sought cable carriage on Cablevision’s systems on Long Island — even though television viewers could not receive WRNN’s over-the-air signal there, and even though cable sys- tems had never carried it there. Exercising its editorial discretion, Cablevision de- termined that carrying WRNN — a station that is licensed to a community as much as 195 miles away from the systems on which the station demanded carriage, see Pet. App. 66a n.11, and that broadcasts mostly home-shopping programming — would not improve the mix of speech on its cable systems serv- ing Long Island. In the wake of must carry’s en- actment, therefore, Cablevision asked the FCC to “remove” Long Island from WRNN’s market, invok- ing a provision empowering the FCC to “exclude communities from” a station’s market “to better ef- fectuate the purposes of” the must-carry statute. 47 U.S.C. § 534(h)\(1)(C i). 3 The must-carry statute instructed the FCC to consider whether must-carry rights should be accorded to home- shopping stations — indeed, it instructed the FCC to consider whether home-shopping stations should be allowed to hold broadcast licenses in the first place. See 47 U.S.C. § 534(g). The FCC answered both questions in the affirmative. See Jm- plementation of Section 4(g) of the Cable Television Consumer Prot. and Competition Act of 1992: Home Shopping Station Is- sues, Report and Order, 8 FCC Red 5321, 44 22-23, 39 (1993). il Relying in part on WRNN’s inability to cast an over-the-air signal over Long Island, the FCC granted Cablevision’s request. See Petition of Ca- blevision Sys. Corp., Memorandum Opinion and Or- der, 11 FCC Red 6453 (CSB 1996), aff’d, Market Modifications and the New York Area of Dominant Influence, Memorandum Opinion and Order, 12 FCC Red 12262 (1997), affd, WLNY-TV, Inc. v. FCC, 163 F.3d 137 (2d Cir. 1998). In an apparent attempt to gain must-carry rights after all, however, a few years later WRNN moved its antenna some 50 miles to the south, extending the reach of its over-the-air signal. See Pet. App. Ya, 38a 9 11. It also added a small amount of pro- gramming that it said was of interest to Long Is- landers. See id. at 38a { 11; see also id. at 41la-43a q¥ 14. It then returned to the FCC, asking the agency to reconsider its prior order. The FCC granted the request, returning Long Is- land to WRNN’s market. In support of this conclu- sion, the FCC’s Media Bureau relied heavily on a single fact: that WRNN now cast a signal over Long Island. See id. at 48a-44a J] 16. On review, how- ever, the full FCC added reliance on an additional fact: that “WRNN submitted a substantial record that details programming that focuses on Long Is- land,” which, according to the FCC, “serve[d} to add more support to” WRNN’s case. /d. at 52a Jj 4. Although the full Commission at least acknowl- edged Cablevision’s constitutional arguments (the Bureau had not), it rejected them summarily. For example, the Commission stated briefly its belief that carriage of WRNN would “help to ensure that the ... station ... remains a viable option for view- 12 ers who rely on free, over-the-air television service in Nassau and Suffolk counties.” Jd. at 55a. The Commission did not point to specific facts support- ing its conclusion despite its burden of proving facts that would sustain its order against Cablevision’s constitutional challenge. Two of the FCC’s five members dissented. The dissenters expressed concern that, instead of help- ing localism, compelling Cablevision to carry WRNN would hurt it. Cable carriage of WRNN on Long Is- land, they explained, would give WRNN an incen- tive to serve Long Island instead of Kingston, its community of license. As the dissenters put it: “There is a point at which the concept of a ‘local market’ reaches the breaking point and expanding it further will actually damage the localism interests we are trying to serve. For the sake of the people of Kingston, we hope we have not reached that point here.” Jd. 68a. Unwilling to accept that risk, the dissenters would have denied WRNN’s market- modification request. B. The Decision of the Court of Appeals. Cablevision filed a petition for review of the FCC’s order in the United States Court of Appeals for the Second Circuit, invoking 28 U.S.C. § 2341, et seq. The court of appeals denied the petition for re- view. See Pet. App. la-26a. The panel rejected Cablevision’s contention that the FCC’s reliance on WRNN’s Long Island-targeted content triggered strict First Amendment scrutiny. See id. at 21a-23a. The court cited three reasons: (1) there was no proof “that the restoration of the Long Island communities to WRNN’s market ... was based on some illicit content-based motive”; 13 (2)“WRNN’s local programming was an inconse- quential factor in the FCC’s ultimate decision”; and (3) under the must-carry statute, WRNN had been presumptively entitled to carriage on Long Island. Id. at 23a. The FCC “considered the amount of local programming provided by WRNN,” the court stated, “only ... in assessing the continued need to restrict a presumptive market defined solely by geography.” Id. The court then held that the FCC’s order could withstand intermediate scrutiny. See id. at 23a- 24a. The court of appeals stated that the FCC’s or- der “advances important governmental interests un- related to the suppression of free speech and does not burden substantially more speech than neces- sary to further these interests.” Jd. at 23a (internal quotation marks omitted). The court of appeals added that “(tlhe burden imposed by the order — the loss of control over one channel — is no greater than necessary to further the government’s interest in preserving a single broadcast channel it found serves the local community.” Jd. at 23a-24a. The court of appeals also rejected Cablevision’s arguments under the Takings Clause of the Fifth Amendment. As noted above, the must-carry stat- ute requires cable operators to carry local stations on a tier that reaches all subscribers. That means that cable companies may not carry local stations on channels that reach, for example, only a subset of digital subscribers. Cablevision therefore argued that compelled carriage of WRNN involves the ap- propriation of the electronic equivalent of a beach- front lot: a 6 MHz channel on the most widely dis- tributed cable tier. And, Cablevision argued that there is no reason to treat valuable electronic prop- 14 erty differently than any other form of property. But the court of appeals disagreed, seeing no per se taking. See id. 24a-26a. Finally, the court of appeals rejected Cablevi- sion’s argument that the FCC had misinterpreted the must-carry statute and failed to justify its deci- sion under it. Under the must-carry statute, the FCC may modify a station’s market only if doing so “better effectuate[s] the purposes of” the must-carry statute and promotes “the value of localism.” 47 U.S.C. § 534(h)(1)(C). Cablevision argued that the FCC had failed to explain how compelling its Long Island systems to carry WRNN was consistent with either the value of localism (when carriage outside WRNN’s traditional service area would only under- mine the station’s incentive to serve its community of license) or the statutory purpose (when Con- gress’s intent had been to protect broadcast stations from unfair treatment in their traditional markets — not to expand their geographic reach). But the court of appeals ruled that the FCC had permissibly found that WRNN could serve both Kingston and Long Island, and that the must-carry statute was not offended by carriage outside a station’s tradi- tional service area. See Pet. App. 17a-19a. Cablevision asked the court of appeals to stay its mandate pending the filing and disposition of a peti- tion for a writ of certiorari, thereby extending a stay pending appeal that the court of appeals had granted earlier. Cablevision showed that compelled carriage of WRNN on the most widely distributed tier would mean dropping or moving C-SPAN (a popular government-affairs service) in some systems and Syfy (a popular entertainment service) in oth- ers. Apparently concluding that there was a rea- 15 sonable probability that this Court would grant Ca- blevision’s petition, the court of appeals granted the motion. Jd. at 69a; see id. at 26a; see also Conkright v. Frommert, 129 S. Ct. 1861, 1861-62 (2009) (Gins- burg, J., in chambers) (stay of mandate appropriate only where there is “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari”) (internal quotation marks omitted). REASONS FOR GRANTING THE PETITION “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expres- sion, consideration, and adherence.” Turner I, 512 U.S. at 641. This Court’s decisions in Turner none- theless sanctioned a significant medium-specific de- viation from that principle. Relying (among other things) on cable companies’ putative position as mo- nopolists, the Court upheld a statute that compelled those companies to carry programming they did not want to carry (thereby displacing programming they do want to carry). Since Turner, however, the cable industry has experienced transformative market and technological changes, including the emergence of vibrant competition. Cable companies simply no longer have the “bottleneck” control that was critical to this Court’s rationale in Turner. In the wake of these changes, compelled carriage pursuant to the must-carry statute is no longer compatible with the Constitution. Moreover, compelled carriage of WRNN by Cablevision’s Long Island systems cannot be justified under Turner’s rationale quite apart from these changes. And such carriage violates not only the Constitution but also the must-carry stat- ute itself. For all these reasons, and because of the 16 fundamental nature of the First Amendment free- doms at stake, this Court should grant the petition. I. THIS COURT SHOULD DECIDE WHETHER THE CONSTITUTION PERMITS MUST- CARRY OBLIGATIONS TO BE IMPOSED UNDER CURRENT CONDITIONS. This case offers the Court an opportunity to de- cide whether must-carry obligations may still be imposed consistent with the Constitution ‘despite sweeping industry changes since the 1990s. That issue has broad significance for virtually every cable system and broadcast station in the country — and, thus, for each of the Nation’s more than 100 million television households. The question has a deep im- pact on perhaps the most fundamental of constitu- tional rights, the right to speak, as well as the equally fundamental right not to speak. And it pro- foundly affects the rights of viewers and listeners to receive their programming of choice. This case also crisply and squarely presents the question in the preferred context of an “as applied” challenge.‘ 4 See, e.g., Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1191 (2008) (“Facial chal- lenges are disfavored ... .”); Sabri v. United States, 541 U.S. 600, 608-09 (2004) (“[F]acial challenges are best when infre- quent. Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by los- ing the lessons taught by the particular, to which common law method normally looks.”) (citations omitted). At the same time, the as-applied nature of Cablevision’s challenge would not prevent the Court from addressing the constitutionality of the must-carry statute as applied even to cable operators other than Cablevision. See, e.g., Citizens United v. FEC, No. 08- 205, slip op. at 12-20 (U.S. Jan. 21, 2010). 17 A. Turner’s Factual Underpinnings Have Evaporated. As explained above, this Court in Turner rejected a facial First Amendment challenge to must carry by the narrowest of margins. In a pair of 5-4 deci- sions, the Court held that must-carry did not trigger strict scrutiny and could survive intermediate scru- tiny. It so held on the basis of a specific and narrow rationale: (1) that cable operators had an incentive not to carry broadcasters; (2) that cable operators faced no competition and were therefore free to act on the incentive; (3) that stations not carried would lose audience and go dark; and (4) that noncable households would therefore be left with fewer over- the-air viewing options. The Court recognized that it was the Government’s burden to prove that the rationale was factually supported.5 And the Court ultimately (albeit narrowly) held that the Govern- ment had carried its burden of proof to sustain the statute against a facial challenge. See Turner II, 520 U.S. at 196-224. In the years since the must-carry statute’s 1992 enactment, however, the facts on the ground have changed beyond recognition. Under current circum- stances, the FCC can no longer make the required showing — which explains why the FCC did not even attempt to make such a showing in this case. 5 See Turner I, 512 U.S. at 664 (“When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it 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.”) (internal quotation marks and citations omitted). 18 In particular, the FCC can no longer show that cable operators possess bottleneck power: Cablevision demonstrated before the FCC that cable operators now face vibrant competition. See C.A. App. 325.6 As the D.C. Circuit recently noted, “satellite tele- vision companies, which were bit players in the early ‘90s, now serve one-third of all subscribers.” Comcast Corp. v. FCC, 579 F.3d 1, 3 (D.C. Cir. 2009); see also Pet. App. 39a. In light of the new in- dustry paradigm, the D.C. Circuit (while addressing another set of cable regulations) determined that “[clable operators ...no longer have the bottleneck power over programming that concerned the Con- gress in 1992.” Comcast, 579 F.3d at 8. The D.C. Circuit concluded that, “[clonsidering the market- place as it is today and the many significant changes that have occurred since 1992, the FCC has not identified a sufficient basis for imposing upon cable operators the ‘special obligations,’ Turner J, 512 U.S. at 641, represented by the {rules at issue there].” Comcast, 579 F.3d at 8. Those statements stand in sharp contrast to this Court’s statement in Turner I that “(t]he must-carry provisions ... are justified by ... the bottleneck monopoly power exercised by cable operators... .” 512 U.S. at 661. Similarly, they stand in sharp con- trast to Justice Breyer’s fifth-vote-supplying concur- rence, which found dispositive that “a cable system . at present (perhaps less in the future) typically faces little competition, [and] that it therefore con- stitutes a kind of bottleneck.” Turner IJ, 520 U.S. at 227-28 (emphasis added). 6 “C.A. App. __” citations are to the court of appeals ap- pendix. 19 The future of which Justice Breyer spoke then is now here. Today, cable systems face extensive com- petition and no longer constitute any kind of bottle- neck. Accordingly, Turner’s rationale can no longer justify an intrusion on constitutional rights, under intermediate scrutiny or any other standard. Be- cause no alternate rationale has ever been sug- gested, must carry cannot be sustained.’ In addition to the advent of competition, three other important industry changes have fatally un- dermined Turner’s rationale. First, Turner rested on the predicate that, once consumers subscribe to cable, they lose access to over-the-air signals be- cause, at the time, available “A/B switches” used for toggling between cable and antenna inputs did not work well. See Turner I, 512 U.S. at 633; Turner II, 520 U.S. at 219-21. By contrast, today’s A/B switches are “built into television receivers and can be easily controlled from a TV remote control de- vice.” Carriage of the Transmissions of Digital Tele- vision Broad. Stations, Notice of Proposed Rulemak- ing, 13 FCC Red 15092, J 16 (1998) (footnote omit- ted). Because viewers today can easily access over- the-air programming even though they subscribe to cable, the FCC cannot establish that broadcast sta- tions need to be carried on cable to reach cable sub- scribers. Second, the percentage of Americans who rely on 7 See R. Matthew Warner, Reassessing Turner and Liti- gating the Must-Carry Law Beyond a Facial Challenge, 60 Fed. Comm. L.J. 359, 378 (2008) (“For those communities in which cable operators experience healthy competition, must-carry rules would not achieve Congress’s objectives and, thus, as ap- plied in those particular areas, the must-carry law should be considered unconstitutional.”). 20 over-the-air television has plummeted. Jurner held that compelled cable carriage was needed “to pre- serve access to free television programming for the 40 percent of Americans without cable.” Turner I, 512 U.S. at 646. But, by the time WRNN filed its petition, the subset of U.S. households relying on over-the-air television had plummeted to 14 percent. See C.A. App. 329. Since then, the number has dwindled even further: the June 2009 transition to digital broadcasting caused large numbers of Ameri- cans to give up on over-the-air reception.2 As the number of Americans relying on over-the-air televi- sion has decreased, so too has the weight of the gov- ernmental interest in preserving the viewing op- tions of those Americans at the expense of free speech. 8 See Nielsen Wire, The Switch from Analog to Digital TV (Nov. 2, 2009), avatlable at http://blog.nielsen.com/nielsenwire/ media_entertainment/the-switch-from-analog-to-digital-tv/ (in the wake of the transition, about a quarter of previously “broadcast only” homes signed up for cable or DBS). Indeed, the over-the-air audience is now sc small that some have ar- gued that the FCC should terminate over-the-air broadcasting and recapture its valuable spectrum. See John Eggerton, Broadcasters Defend Spectrum From Reclamation Proposals, Multichannel News (Oct. 26, 2009), available at http://Awww.multichannel.com/article/366507-Broad casters _Defend_Spectrum_From_Reclamation_Proposals.php?rssid=2 0076&q=broadcast+television+FCC; see also Stuart Minor Benjamin, Roasting the Pig To Burn Down the House: A Mod- est Proposal, 7 J. on Telecomms. & High Tech. L. 95, 98 (2009) (“Simply stated, the costs of subsidizing cable or satellite ser- vice for the 14% of households that do not subscribe to cable or satellite but want television service would be a small fraction of the value of broadcast frequencies, as reflected in the value of those frequencies at auction once they could be used for any service.”). 21 Finally, cable operators in the 1990s offered only one or two tiers of so-called “analog” service. But cable operators today provide additional “digital” tiers. Because the analog tiers were filled up long ago, new non-broadcast services are nowadays added to the digital tiers, which have fewer sub- scribers. See Cable Horizontal and Vertical Owner- ship Limits, Fourth Report & Order, 23 FCC Red 2134, 7 58 (2008), vacated on other grounds, Com- cast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009). Yet, under the must-carry statute, broadcast stations like WRNN can commandeer a channel on the most widely distributed — and thus most desirable — tier. See 47 U.S.C. § 534(b)(7). Thus, in today’s video marketplace, the must-carry statute goes well beyond placing broadcast stations on equal footing with non-broadcast services — it grants broadcast stations special privileges. Indeed, WRNN’s business model seems to be built on that fact. In the absence of must carry, the home-shopping station might still be able to secure substantial cable carriage in the New York City market, but it would likely be carried on a digital channel higher on the cable dial and on a less pene- trated tier. By claiming must-carry rights, WRNN can occupy a favored spot on the dial alongside the most widely watched cable services. See 47 U.S.C. § 534(b)(6)-(7). The Constitution simply cannot jus- tify that result. Must carry was enacted and upheld on the theory that it would protect access to over- the-air broadcast signals — not that it would give broadcasters preferential treatment so that they can capture channel surfers and earn rich home- shopping profits. 22 B. Whether Imposition of Must-Carry Obli- gations Remains Consistent with the Constitution Should Be Decided Now. “Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner J, 512 U.S. at 636. And “({aJt the heart of the First Amendment lies the prin- ciple that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Jd. at 641. To this principle, the Turner holdings recognized a broad and unusual exception — one that compels un- wanted speech in a large and important sector of the communications media. But that exception was never cast in stone — it was predicated on the special market circumstances that existed at the time. As this Court noted just last week, media-specific First Amendment rules “might soon prove to be irrelevant or outdated by technologies that are in rapid flux.” Citizens United v. FEC, No. 08-205, slip op. at 9 (U.S. Jan. 21, 2010) (citing Turner I, 512 U.S. at 639). That is precisely what happened here: the circumstances underpin- ning Turner’s rationale have now ceased to exist. Thus, the time has come for the restraint on speech to be removed as well. Despite the transforming market and technologi- cal changes that have occurred since the 1990s, and despite the D.C. Circuit’s Comcast decision, the court of appeals in this case held that this Court’s Turner decisions required it to affirm the FCC’s car- riage order. See Pet. App. 19a-24a. But Turner re- jected a facial attack on the statute. See Turner I, 23 512 U.S. at 671 (Stevens, J., concurring in part and concurring in the judgment). A precedent upholding a statute against a facial attack never bars an as- applied challenge, particularly when facts essential to that precedent’s holding have changed. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938) (“[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing ... that those facts have ceased to exist.”); Cutter v. Wilkinson, 544 U.S. 709, 725 (2005) (decision of this Court uphold- ing a statute against a facial challenge does not con- stitute precedent barring later “as-applied chal- lenges”). The court of appeals’ reluctance, however, is not surprising. Both the FCC and WRNN argued before the court of appeals that any other conclusion would in effect overrule Turner, and that only this Court has authority to do so.? Because other courts of ap- peals will likely display similar reluctance, a conflict of authority is unlikely to develop. Granting review in this case has an additional advantage: it will allow the Court to decide whether must carry is consistent not only with the First Amendment, but also with the Takings Clause of the Fifth Amendment. The must-carry statute does not merely appropriate cable operators’ valuable 9 See FCC C.A. Br. 46 (“Much as Cablevision would like to wish the Turner decisions away, . . . this Court has no power to overrule or depart from controlling Supreme Court prece- dent.”); WRNN C.A. Br. 55 (“the Long Island Order is within the heartland of Turner, and this Court is not at liberty to de- part from binding Supreme Court precedent unless and until the Court reinterprets that precedent”) (internal quotation marks and brackets omitted). 24 channels;!° it appropriates channels on the most widely distributed cable tier — the electronic equivalent of a beach-front lot. There is no reason to treat valuable electronic property differently than any other property.'! Yet this Court has to date not had an opportunity to address whether the full and complete appropriation of the basic property unit in cable television, the individual television channel, effects a per se taking: the issue was not presented to this Court in Turner. By contrast, Cablevision has carefully preserved the issue throughout the in- stant litigation. See Pet. App. 24a-26a, 55a-58a 19 8-9. Thus, the Court can address the issue here. For this reason, too, review should be granted. II. THIS COURT SHOULD DECIDE WHETH- ER, CONSISTENT WITH THE CONSTITU- TION, CABLEVISION’S LONG ISLAND CA- BLE SYSTEMS MAY BE COMPELLED TO CARRY WRNN. The Court should also decide whether Cablevi- sion’s Long Island systems can be compelled to carry WRNN. Even apart from the industry-wide changes 10 The statute itself recognizes that cable channels consti- tute valuable property. See 47 U.S.C. § 532 (providing that a non-broadcast service that a cable system does not wish to carry voluntarily may still secure access to a cable channel] if it pays for the privilege). 11 See Midwest Video Corp. v. FCC, 571 F.2d 1025, 1058 (8th Cir. 1978) (“a requirement that facilities be ... dedicated without compensation . .. would be a deprivation forbidden by the Fifth Amendment”), affd, 440 U.S. 689 (1979); Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 67 n.10 (D.D.C. 1993) (Williams, J., dissenting) (“The creation of an entitle- ment in some parties to use the facilities of another, gratis, would seem on its face to implicate Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)... .”). 25 described above, T'urner’s rationale cannot justify compelled carriage of WRNN here. Indeed, because of the decision below, First Amendment values have suffered across the board. Cablevision is not merely being forced to carry programming against its judgment. It must replace valuable cable program- ming (including the public-affairs programming provided by C-SPAN) with home-shopping pro- gramming that consumers desire to watch to a much lesser extent. This issue, moreover, helps place all facts of the case before the Court, providing concrete factual context, illustrating the breadth of must carry’s application, and avoiding possible questions about the scope of the other questions presented. A. Compelled Carriage of WRNN Here Can- not Be Predicated on Turner’s Rationale. In addition to changes in the industry generally, there are five reasons why Turner’s rationale cannot be invoked to require Cablevision’s Long Island sys- tems to carry WRNN. First, Turner rests fundamentally on the notion that must carry is necessary to safeguard the view- ing choices of over-the-air viewers; absent carriage on cable, Turner suggested, over-the-air stations serving non-cable subscribers might have insuffi- cient viewers to survive. But WRNN itself has trumpeted that it has no over-the-air audience: in asking the FCC for permission to make technical changes to its over-the-air signal, WRNN has stated that “the impact on the public will be imperceptible since, according to Nielsen Media Research, there [is] no reportable over-the-air viewing for the station ....” WRNN-TYV Assocs., 19 FCC Red 12343, 12344 (MB 2004); see also Pet. App. 45a 9 18 (noting 26 WRNN’s “lack of audience share”). There is no im- portant governmental interest in saving a broadcast signal for an over-the-air audience that does not ex- ist. See Turner II, 520 U.S. at 233, 244 (O’Connor, J., dissenting). Second, and relatedly, Turner rested on the no- tion that broadcasters should be restored to the au- dience that they would have had in a world without cable.!2 Turner did not rest on the notion that broadcasters should be made better off than they would have been without cable.!5 Here, Cablevision does not provide service to WRNN’s traditional broadcast market in upstate New York; it thus does not compete for viewers. Consequently, compelled 12 See Turner I, 512 U.S. at 659 (“Congress granted must- carry privileges to broadcast stations on the belief that the broadcast television industry is in economic peril due to the physical characteristics of cable transmission and the economic incentives facing the cable industry.”); id. at 663 (“protecting noncable households from loss of regular television broadcast- ing service due to competition from cable systems is an impor- tant federal interest”) (internal quotation marks omitted); Turner IT, 520 U.S. at 193 (“In short, Congress enacted must- carry to preserve the existing structure of the Nation’s broad- cast television medium while permitting the concomitant ex- pansion and development of cable television.”) (internal quota- tion marks omitted); Turner [/, 520 U.S. at 226 (Breyer, J., concurring) (describing the rationale as being “to prevent... a decline ... of programming choice for an ever-shrinking non- cable subscribing segment of the public”) (emphasis added). 13 See Turner II, 520 U.S. at 222 (“[A] system of subsidies would serve a very different purpose than must-carry. Must- carry is intended not to guarantee the financial health of all broadcasters, but to ensure a base number of broadcasters survive to provide service to noncable households.”); id. at 246 (O’Connor, J., dissenting) (“the must-carry provisions have never been justified as a means of enhancing broadcast televi- sion”) (emphasis in original). 27 carriage here would not give Long Island viewers access to a broadcast station on which they have traditionally relied, or give WRNN access to viewers its traditional over-the-air signals were capable of reaching. It would instead extend WRNN’s reach by giving cable subscribers access to an unknown home-shopping station that merely seeks the prom- ise of must-carry riches. Third, Turner’s rationale cannot justify compelled carriage where, as here, there is no evidence that the station seeking carriage will decline absent car- riage. Turner proposed that “broadcast stations de- nied carriage will either deteriorate to a substantial degree or fail altogether.” Turner I, 512 U.S. at 666 (plurality); see id. at 667; Turner IZ, 520 U.S. at 195, 208. The record here shows that WRNN (a station whose low-cost home-shopping programming is al- ready carried to millions of cable homes) has been on the air for more than a quarter of a century, see Pet. App. 34a, and has prospered without carriage on Long Island — so much so that it was able to fund expensive changes to its transmitter without any guarantee of a must-carry pay-off. To defend must carry against a facial challenge, it may have been enough for the FCC to show that, without must carry, hardship would befall some stations. But see Turner I, 512 U.S. at.682 (O’Connor, J., dissenting). In the face of an as-applied challenge, however, there must be a showing that hardship will befall the particular station at issue. Fourth, Turner’s rationale does not apply where, as here, there is no evidence that the cable operator has declined to carry a station with a view to stifling competition. Turner posited that must carry was needed to protect stations from cable operators who 28 might refuse to carry them for an anticompetitive reason, namely to protect themselves from competi- tion for local advertising. There is no record evi- dence that Cablevision acted on any such motive here. To the contrary, Cablevision declined to carry the home-shopping station because few subscribers are interested in watching it. To defend must carry against a facial challenge, it may have been enough for the FCC to show that anticompetitive motives drove some carriage decisions. But see Turner I, 512 U.S. at 682 (O’Connor, J., dissenting). In the face of an as-applied challenge, however, the Government must prove that anticompetitive motives drove the specific carriage judgment that the Government seeks to override. Finally, Turner’s rationale simply ceases to func- tion where a cable operator is subject to competition. See supra, pp. 17-19. Turner’s fundamental premise — the reason it found must carry necessary — was that cable operators had market power that enabled them to drop popular broadcast stations without having to fear losing subscribers. But that reason- ing no longer holds: all cable systems in the United States are now subject to competition from two sat- ellite operators that have garnered about one third of all subscribers. See supra, p.18. Cablevision’s systems on Long Island are subject to particularly vibrant competition: as the order under review itself observes, Cablevision’s Long Island systems also face robust competition from Verizon’s fiber-optic cable television service. See Pet. App. 52a 7 4n.15. Under these circumstances, compelling Cablevi- sion’s Long Island systems to carry WRNN cannot be justified on the basis of Turner. Even apart from the impossibility of reconciling this application of 29 must carry with Turner itself, see Sup. Ct. R. 10(c), this application of must carry proves precisely why this Court’s immediate intervention is necessary. Must carry is no longer being used merely as a shield to prevent potentially anticompetitive deci- sions from shutting out over-the-air stations that might fail as a result. It has now become a sword that stations with no over-the-air viewership can in- voke to override legitimate editorial choices and ex- pand their geographic scope at the expense of valu- able educational programming that viewers prefer to watch. This is something the First Amendment cannot tolerate. B. The FCC Order Under Review Should Be Subject to Strict Scrutiny. In Turner, this Court recognized that must-carry orders can avoid strict scrutiny only if they “confer must-carry rights on ... broadcasters ... irrespec- tive of the content of their programming.” Turner J, 512 U.S. at 647. This case squarely implicates an aspect of the must-carry statute that is directly con- trary to that admonition. The must-carry statute’s market-modification provision states that, in evaluating market- modification requests, the FCC should “afford par- ticular attention to the value of localism” — i.e., to whether a station provides “news coverage of issues of concern to [a] community or provides carriage or coverage of sporting and other events of interest to the community.” 47 U.S.C. § 534(h)(1)(C)Gi). In Turner I, this Court recognized that this provision “appears to single out ... broadcasters for special benefits on the basis of content.” 512 U.S. at 644 n.6. The Court, however, had no occasion to rule on 30 the issue on a facial challenge. See id. In this case, by contrast, the FCC expressly relied on this aspect of the statute and cited the content of WRNN’s programming as a factor militating in fa- vor of compelled carriage. See Pet. App. 51la-52a { 4.14 Yet the court of appeals held that such con- sideration of content did not trigger strict scrutiny. See Pet. App. 22a-23a. Each of the three reasons listed by the court of appeals is insupportable. First, the court of appeals erred in suggesting that consideration of content triggers strict scrutiny only when there is an “illicit content-based motive.” Pet. App. 23a. This Court has consistently held that “illicit legislative intent is not the sine qua non of a violation of the First Amendment.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Reve- nue, 460 U.S. 575, 592 (1983); see also Turner IT, 520 U.S. at 257 (O’Connor, J., dissenting) (“Whether a provision is viewpoint neutral is irrelevant to the question whether it is also content neutral.”). Thus, the Second Circuit’s contrary ruling flies in the face of this Court’s unambiguous precedent. Second, the court of appeals erroneously sug- gested that strict scrutiny is not triggered if consid- erations of content are given only “inconsequential” weight. Pet. App. 23a. The court of appeals cited no authority for that proposition, and this Court has re- 14 That was hardly unusual — the FCC does so routinely. See, e.g., Tennessee Broad. Partners, Memorandum Opinion and Order, 23 FCC Red 3928, 97 61-75 (2008); Harron Cable- vision of Mass. d/b/a Harron Commce’ns Corp., Memorandum Opinion and Order, 18 FCC Red 16856, J 4 (2003); Mid-State Television, Inc., Memorandum Opinion and Order, 16 FCC Red 5525, 7 15 (2001). 31 jected the use of de minimis exceptions in the First Amendment area. See Lorillard Tobacco Co. v. Reilly, 5383 U.S. 525, 567 (2001) (“There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”); see also Turner I, 512 U.S. at 679 (O’Connor, J., dissenting) (“[Wle have never held that the presence of a permissible justification lessens the impropriety of relying in part on an impermissible justification. In fact, we have often struck down statutes as being impermis- sibly content based even though their primary pur- pose was indubitably content neutral.”); id. at 686 (Ginsburg, J., dissenting) (“an intertwined or even discrete content-neutral justification does not ren- der speculative, or reduce to har aless surplus, Con- gress’ evident plan to advance local programming”). Finally, the Second Circuit erred in suggesting that the FCC may consider content in returning WRNN to its statutory “presumptive” market — ap- parently on the theory that Congress fixed the de- fault market without regard to content. Pet. App. 22a. It may be that, if the FCC had not limited WRNN’s market previously, the FCC would not have had an opportunity to restore WRNN to the statutory default and to rely on WRNN’s content in the process. But the FCC did limit WRNN’s market, it did restore that market, and, in doing so, it did rely on content. If, in restoring WRNN’s default market, the FCC had relied on WRNN’s political viewpoint, its order undoubtedly would have been impermissibly content-based. It is hard to see how this is any different: “[rjegulation of the subject matter of messages, though not as obnexious as viewpoint-based regulation, is also an objectionable form of content-based regulation.” Hill v. Colorado, 32 530 U.S. 703, 723 (2000). In sum, this Court in Turner left open whether strict scrutiny is triggered by the market- modification provision’s instruction that the FCC consider a station’s programming content. That is- sue is important. And although Turner had no occa- sion to rule on the issue, the Court strongly sug- gested that the answer is “yes.” The court of ap- peals nonetheless resolved the issue the other way. None of its three purported distinctions is compati- ble with this Court’s precedent. Review of this as- pect of the court of appeals’ decision is therefore ap- propriate as well. I. THIS COURT SHOULD DECIDE WHETH- ER COMPELLED CARRIAGE OF WRNN IS CONSISTENT WITH THE MUST-CARRY STATUTE. The Court should also decide whether compelled carriage in this case is consistent with the must- carry statute. The issue is not merely important. It also is closely related to the fundamental constitu- tional dispute at the core of this case and places be- fore the Court that dispute’s full context. As noted above, the order under review altered WRNN’s must-carry market pursuant to 47 U.S.C. § 534(h)(1)(C). That provision states that the FCC may modify stations’ markets “to better effectuate the purposes of this section.” Id. § 534(h)(1)(C)G). It further states that the FCC must “afford particular attention to the value of localism.” Id. § 534(h)(1)(C) Gi. Compelled carriage of WRNN by Cablevision’s systems on Long Island will do nothing to further 33 the value of localism. Localism calls for the needs of Long Islanders to be served by Long Island stations — not by stations from upstate New York. Con- versely, localism is not furthered by giving a King- ston station an incentive to neglect its Kingston au- dience and to cater to a seemingly more appealing audience on Long Island.16 More generally, the purpose of the must-carry statute was to restore broadcasters to the audience that they would have had in a world without cable — not to make broadcasters better off than they would have been without cable. See supra, p.26. Thus, requiring carriage of WRNN many of miles away from its traditional over-the-air service aree 15 See, e.g., Broadcast Localism, Report on Broadcast Lo- calism and Notice of Proposed Rulemaking, 23 FCC Red 1324, 45 (2008) (“the Commission has .ong recognized that every community of appreciable size has a presumptive need for its own transmission service”) (internal quotation marks omitted). 16 See Pet. App. 68a (Joint Statement of Commissioners Copps and Adelstein, dissenting) (“There is a point at which the concept of a ‘local market’ reaches the breaking point and expanding it further will actually damage the localism inter- ests we are trying to serve.”). Indeed, the FCC previously rec- ognized precisely that in defending against WRNN’s attack on the agency’s prior market-modification order. See Brief of Re- spondents-Appellees at 29-30, WLNY-TV, Inc. v. FCC, No. 97- 4243 (2d Cir. Jan. 22, 1998) (“[I]f a station licensed to upstate New York were carried on cable systems serving .. . more densely populated Nassau County, it would have an incentive to provide programming targeted at the more profitable Long Island communities at the expense of the community the sta- tion has been licensed to serve. That would defeat the very lo- calism that must carry is intended to promote as well as the congressional policy that television stations be licensed to various communities throughout the country and not just in the most populous areas.”). 34 does not “better effectuate the purposes of” the must-carry statute. Despite these serious statutory concerns, the FCC held that Cablevision must carry WRNN. It did so without even addressing whether compelled car- riage “better effectuate[s] the purposes of this sec- tion” and promotes “the value of localism.” The FCC thereby violated both the must-carry statute, 47 U.S.C. § 534(h)(1)(C), and the Administrative Pro- cedure Act, 5 U.S.C. § 706(2)(A). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, JEFFREY A. LAMKEN HENK BRANDS MoOLOLAMKEN LLP Counsel of Record 600 New Hampshire PAUL, WEISS, RIFKIND, Avenue, NW WHARTON & GARRISON LLF Washington, D.C. 20037 2001 K Street, NW (202) 556-2000 Washington, D.C. 20006 Howarp J. SYMONS (202) 223-7300 TARA M. CORVO MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 701 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 434-7300 Counsel for Petitioner January 27, 2010 APPENDICES APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: April 7, 2008 Decided: June 22, 2009) Docket No. 07-5553-ag CABLEVISION SYSTEMS CORPORATION, Petitioner, — V. FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondents, WRNN LICENSE COMPANY, LLC, Intervenor Respondents, Before: WALKER, CABRANES, and RAGGI, Circutt Judges. Petition for review of an order of the Federal Communications Commission directing petitioner Cablevision to carry the signal of television station WRNN pursuant to 47 U.S.C. § 534 (a)-(b) & (h)(1)(c). Cablevision argues that the Commission’s decision contravenes the text and purpose of the statute, and that the statute, as applied, violated Cablevision’s First and Fifth Amendment rights. PETITION DENIED. HENK BRANDS (Allan J. Arffa and J. Adam Skaggs, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C., and Howard J. 2a Symons and Tara M. Corvo (on the brief), Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Wash- ington, D.C., for Petitioner. JACOB M. LEWIS (Matthew B. Berry, Joseph R. Palmore, and Nicholas A. Degani, Federal Commu- nications Commission, and Thomas O. Barnett, John J. O’Connell, Jr., Catherine G. O’Sullivan, and Robert J. Wiggers, U.S. Department of Justice, on the brief), Federal Communications Commission, Washington, D.C., for Respondent. ANDREW G. MCBRIDE (Todd M. Stansbury and William S. Consovoy, on the brief), Wiley Rein LLP, Washington, D.C., for Intervenor. Jane E. Mago, Marsha J. MacBride, and Erin L. Dozier (on the brief), National Association of Broad- casters, Washington, D.C., for Amicus Curiae Na- tional Association of Broadcasters. John M. Walker, Jr., Circuit Judge: The must-carry provisions of the Cable Television Consumer Protection and Competition Act (“1992 Cable Act” or “Cable Act”) require cable operators to transmit, over their cable systems, the signals of certain broadcast stations operating in the same market. The statute also gives the Federal Com- munications Commission (“FCC” or “the Commis- sion”) authority to modify a given broadcast sta- tion’s market, thus potentially changing the uni- verse of cable operators required to carry that sta- tion. In this case, Cablevision, a cable systems op- erator, petitions for review of the FCC’s decision to include certain Long Island communities in the market of WRNN, a station broadcasting from up- state New York, and the resulting order directing 3a Cablevision to carry WRNN on its Long Island cable systems. Because we find no constitutional or legal error in the FCC’s decision, we DENY the petition. BACKGROUND I. The 1992 Cable Act and Its Must-Carry Pro- visions The must-carry provisions of the 1992 Cable Act require “cable operators,” such as Cablevision, to carry the signals of a number of “local commercial television stations.” 47 U.S.C. § 534(a). The statute caps the number of such stations that a cable opera- tor must carry at “up to one-third of the aggregate number of usable activated channels” on that opera- tor’s system. Id. § 534(b)(1)(B). For our purposes, a “local commercial television station” is a broadcast station (i.e., a station that transmits its signal over the airwaves) that, “with respect to a particular ca- ble system, is within the same television market as the cable system.” Id. § 534(h)(1)(A). A broadcast station’s market “shall be determined by the Commission by regulation or order using, where available, commercial publications which de- lineate television markets based on viewing pat- terns.” Id. § 534(h)(1)(C)Xi). Currently, the Com- mission relies on the commercial publications of Nielsen Media Research that divide the nation into a series of coterminous geographic “Designated Market Areas” (“DMAs”) based on viewership pat- terns. 47 C.F.R. § 76.55(eX2). For example, the New York City DMA contains not only the five bor- oughs of the city, but also neighboring areas of Long Island, Connecticut, New Jersey, and upstate New York, as well as limited areas of Pennsylvania, be- 4a cause people in those areas, in the aggregate, watch the same television channels. The upshot of the must-carry provisions is that, in general, each cable operator is required to carry the signal of every broadcast station in its DMA, un- til it has dedicated “one-third of the aggregate num- ber of usable activated channels” on its system to such channels. 47 U.S.C. § 534(b)(1)(B); see also id. § 534(a)-(b), (h)(1)(C). Both Cablevision and WRNN are located within the New York City DMA, and Cablevision currently has fewer than one-third of its channels dedicated to must-carry stations. The only relevant exception to this must-carry rule occurs under the statute’s market modification provision. Pursuant to this provision, the FCC may, on written request, add certain communities to, or exclude certain communities from, a given broadcast station’s market “to better effectuate the purposes” of the statute. § 534(h\1\C)(i). If a given commu- nity is excluded from a station’s market, cable op- erators in that community are no longer required to carry that station. If a given community is added, cable operators in that community must commence carriage of that station’s signal unless they already devote one-third of their channels to local broadcast stations. See id. In considering market modification requests, the statute instructs the FCC to afford particular attention to the value of localism by taking into account such factors as — (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such com- 5a munity; [the “historical carriage factor”] (II) whether the television station provides cover- age or other local service to such community; [the “local service factor”] (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of inter- est to the community; [the “other stations factor”] and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community [the “viewing patterns factor”). 47 U.S.C. § 534(h)(1)(C\iiXD)-(IV). The FCC’s inter- pretation and application of this provision lies at the heart of this dispute. Il. The Turner Litigation Shortly after the passage of the 1992 Cable Act, several cable operators mounted a First Amendment challenge to the legislation by claiming that the statute, on its face, impermissibly burdened the rights both of cable programmers, who produce tele- vision shows exclusively for cable distribution (e.g., HBO, TNT), and of cable operators, who actually transmit the programming to consumers via coaxial cable (e.g., Cablevision). In Turner Broadcasting System, Inc. v. FCC (“Turner I”), 512 U.S. 622 (1994), the Supreme Court he!d that the statute’s requirements were content neutral, and therefore subject to intermediate scrutiny. The Court’s major- 6a ity opinion announced that, at least in the abstract, the statute served three “important,” interrelated interests articulated by Congress in the statute’s findings: “(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 com- petition in the market for television programming.” Id. at 662. The majority, however, concluded that “deficienclies]” in the record prevented it from de- termining whether the statute was sufficiently tai- lored to further those interests without substan- tially burdening protected speech and remanded for further proceedings. Jd. at 667-68. Significantly, the majority noted that the district court had not addressed whether the language of the market modification provision, with its refer- ences to “the value of localism” and to stations “provid[ing] news coverage of issues of concern to such community,” altered the content-neutrality of the statute. /d. at 643 n.6 (quoting 47 U.S.C. § 534(h)(1)(C)Gi)). The Court did not address this point. Jd. In a dissent joined by three other jus- tices, Justice O’Connor, relying in part on the lan- guage of the market modification provision, wrote that the must-carry regulation was content-based, and thus subject to strict scrutiny, such that it could only be justified by a compelling governmental in- terest and would have to be narrowly tailored to achieve its intended purpose. /d. at 680. In 1997, with a more fully developed record before it, the Supreme Court held that “the must-carry provisions further important governmental inter- ests” and that the provisions did not violate the Ta First Amendment because they did “not burden sub- stantially more speech than necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC (“Turner II*), 520 U.S. 180, 185 (1997). None of the opinions in Turner IT specifically mentioned or cited the market modification provision. Ill. Market Modification Decisions in the New York City DMA In 1996, Cablevision petitioned the FCC to ex- clude a number of communities from the markets of several local broadcast stations, including WRNN, a station licensed in Kingston, New York that trans- mitted its signal from Overlook Mountain in Wood- stock, New York. The FCC’s Cable Services Bureau (the “Bureau”) granted Cablevision’s request in part and denied it in part, excluding communities in Long Island’s Nassau and Suffolk counties from WRNN’s market, but declining to exclude communi- ties elsewhere, such as New York’s Westchester County and Connecticut’s Fairfield County. Cablevision Sys. Corp. (“1996 CSB Order“), 11 F.C.C.R. 6453 (1996). In making both decisions, the Bureau noted that, in the New York DMA, reliance on the four enumerated factors alone would not al- low it to “take into account the particular difficulties faced by these stations in light of the purposes of the carriage rule.” Jd. at 6475 450. Accordingly, the Bureau also considered the station’s “Grade B con- tour,” t.e., the area within which viewers can receive its broadcast signal over the air, and the “geography and terrain” separating the target communities from the broadcasting station. Jd. at 6480-81 7 67. In 1997, the FCC affirmed the Bureau’s decision, noting that 8a Grade B contour coverage, in the absence of other determinative -market facts (i.e. where the four statutory factors by themselves define the mar- ket, where there is no clear proof that the contour fails to reflect actual coverage, or where there is a terrain obstacle such as a mountain range or a significant body of water) is an efficient tool to ad- just market boundaries because it is a sound in- dicator of the economic reach of a particular tele- vision station’s signal. Market Modifications and the New York Area of Dominant Influence (“1997 FCC Order“),) 12 F.C.C.R. 12262, 12271 J 17 (1997) (footnote omit- ted). When WRNW and several other stations peti- tioned for review, this court endorsed the agency’s reliance on Grade B contour in particular and fac- tors not enumerated in the statute in general. We approved of the view that “the four factors [enumer- ated in the statute] are not exclusive,” and we held that “[t]he FCC and the Cable Services Bureau, ex- perts in the area of regulation of the television in- dustry, carefully and properly analyzed the particu- lar facts of the various petitions under the four fac- tors listed in the statute and under non-statutory factors.” WLNY-TV, Inc. v. FCC, 163 F.3d 137, 141- 42 (2d Cir. 1998). IV. The Current Proceedings Subsequent to the outcome of the 1996-98 pro- ceedings, WRNN moved its transmitter to Beacon 1 “Area of dominant influence” (“ADI”) is the pre-2001 equivalent of the term “Designated Market Area” (“DMA”). 9a Mountain, New York, some 50 miles closer to Man- hattan, and commenced digital-only broadcast op- erations. In 2005, it petitioned the FCC to add back some of the communities in the New York City DMA in its market so that Time Warner Cable, which served the relevant communities, would have to carry WRNN on its system. Relying primarily on Grade B contour and local programming, the FCC’s Media Bureau (the successor to the Cable Services Bureau) granted WRNN’s request. WRNWN License Co., 20 F.C.C.R. 7904, 7911 {J 15, 16 (2005). Time Warner Cable did not appeal the decision to the full Commission. In 2006, relevant to the present review, WRNN petitioned for re-inclusion of several communities, this time served by Cablevision, in Long Island’s Nassau and Suffolk Counties. The Bureau denied the request as to a number of the Suffolk County communities based on WRNN’s failure to comply with “standardized evidentiary requirements.” WRNN License Co. (“2006 Bureau Order“), 21 F.C.C.R. 5952, 5956 J 9 (2006). WRNN does not seek review of the Bureau’s decision as to these communities. As to the remaining Nassau and Suf- folk communities, which we will refer to as the “Long Island communities,” the Bureau noted that the enumerated market modification factors did not offer strong support for WRNN’s position. The par- ties vigorously disputed the amount of Long Island- specific programming WRNN offered, and the Bu- reau ultimately concluded that the local service fac- tor weighed against carriage. As to the historical carriage factor, the Bureau found it insignificant that both cable systems in neighboring communities and digital broadcast satellite operators in the Long 10a Island communities carried WRNN. It also accorded little weight to the fact that Verizon was scheduled to begin carrying WRNN on its FiOS system, which delivers television programming to subscribers over fiber optic phone lines, thus competing directly with cable television service. Nonetheless, the Bureau granted WRNN’s request to include the remaining Long Island communities, noting that Commission precedent “instructs us to give little weight to the level of viewership [that] station{s] like WRNN achieve” and to treat Grade B contour as a “very relevant factor” when “the other [enumerated] fac- tors would not add significantly to the analysis of a station’s market.” Jd. at 5957 7 10. In the Bureau’s view, Grade B contour weighed decisively in WRNN’s favor. On appeal, the FCC affirmed the Bureau’s order. WRNN License Co. (“2007 FCC Order“), 22 F.C.C.R. 21054 (2007). It disagreed with the Bureau’s analy- sis of the local service and historical carriage fac-_ tors, finding that those factors lent additional sup- port to the Bureau’s decision to include the Long Is- land communities in WRNN’s market. Jd. at 21056 J 4 & n. 15. The FCC also rejected Cablevision’s claims that the Bureau’s application of the market modification provision violated the First Amend- ment and the takings clause of the Fifth Amend- ment. Id. at 21057-59 ¥{ 7-10. Cablevision filed a timely petition for review in this court. DISCUSSION In general, we will overturn an agency decision “only if it was ‘arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law.” Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89 lla (2d Cir. 2000) (quoting 5 U.S.C. § 706(2)(A)). “An agency’s factual findings must be supported by sub- stantial evidence,” which means “such relevant evi- dence as a reasonable mind might accept as ade- quate to support a conclusion.” Jd. Gnternal quota- tion marks omitted). We review an agency’s disposi- tion of constitutional issues de novo. See Rural Tel. Coal. v. FCC, 838 F.2d 1307, 1313 (D.C. Cir. 1988). In its petition for review, Cablevision argues that the FCC’s order improperly analyzed the statutory factors, that its decision contravened the “purpose” of the must-carry statute, and that requiring Cable- vision to carry WRNN violates the First and Fifth Amendments. We address each of these arguments in turn. I. The FCC’s Analysis of the Section 534(h)(1)(C) Factors A. The Local Service Factor Cablevision claims that the FCC failed to ade- quately explain its finding that WRNN provided sig- nificant programming targeted to the Long Island communities. By insisting, however, that “at a minimum, the FCC was required to explain” why Cablevision’s arguments and evidence to the con- trary were “unpersuasive,” Cablevision Br. at 35, Cablevision overstates an agency’s duty to account for its actions. An administrative agency has a duty to explain its ultimate action. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action.”). However, it need not explain each and 12a every step leading to this decision; it is enough “if the agency’s path may reasonably be discerned.” Id. (internal quotation marks omitted). Here, the rea- son for the FCC’s decision to affirm the Media Bu- reau’s order is perfectly clear: it agreed with the reasoning of the Bureau in most respects and dis- agreed in certain others, but only in ways that strengthened the validity of the Bureau’s decision. In such circumstances, we will not require the FCC to sift through each piece of evidence offered by a party and explain why it is more or less compelling than the counter-evidence put forth by an opponent. The fact that we review agency fact-finding for “substantial evidence” supports our conclusion that the FCC’s explanation was adequate. To determine whether substantial evidence supports a finding, we need ask only whether “a reasonable mind might accept [it] as adequate” support. Cellular Phone Taskforce, 205 F.3d at 89 (internal quotation marks omitted). Here, the agency found WRNN’s evidence that it had significant Long Island-targeted pro- gramming to be more persuasive than Cablevision’s evidence to the contrary. We need not know the agency’s precise rationale in order to conclude that it was reasonable for the agency to so find. While such an explanation might have aided our reason- ableness inquiry, it is not indispensable. Both sides offered evidence regarding WRNN’s programming content. According to Cablevision, its evidence showed that WRNN broadcast less than an hour of programming covering “Long Island issues” in a “representative week.” Cablevision Br. at 33. WRNN pointed to evidence that it had aired over 4000 Long Island-related items between June and 13a November 2005. It would be reasonable for the agency to resolve this conflicting evidence in favor of WRNN and to conclude (as it obviously did) that Cablevision failed to include some programming that should properly be considered as local to Long Island, or that its sample week was not actually representative. Thus, substantial evidence supports the FCC’s finding on this factor. We note that the Bureau, on its initial considera- tion of this petition, made a contrary finding as to this factor. This fact, however, does not alter our assessment of the FCC’s ultimate determination. “An agency conclusion may be supported by sub- stantial evidence even though a plausible alterna- tive interpretation of the evidence would support a contrary view.” Robinson v. Natl Transp. Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994) (internal quo- tation marks omitted). On questions of fact, our task on review is not to “displace [the agency’s final] choice between two fairly conflicting views.” Uni- versal Camera Corp. v. NLRB, 340 U.S. 474 (1951). B. The Historical Carriage Factor After’ the Bureau issued its 2006 Order, but be- fore the FCC affirmed it, Verizon began carrying WRNN on its FiOS system to areas of Nassau and Suffolk Counties. 2007 FCC Order, 22 F.C.C.R. at 21056 J 4 & n.15. The FCC concluded that this “overlapping carriage provides support for WRNN- DT with respect to the historic carriage factor.” Id. at J 4n.15. In a single paragraph in its brief, Ca- blevision argues that this analysis is “contrary to clear statutory language” because “[c]arriage initi- ated in the past few months does not constitute his- torical carriage.” Cablevision Br. at 36-37. l4a Cablevision, however, fails to supply a contrary, “correct” definition of “historically carried,” and does not discuss whether we should defer to the Bureau’s interpretation of the term, in accordance with Chev- ron U.S.A., Inc. v. Natural Resources Defense Coun- cil, Inc., 467 U.S. 837 (1984), as we did with the must-carry statute generally in WLNY-TYV, Inc. v. FCC, 168 F.3d at 142. Even if Cablevision could demonstrate error in the sense that the Verizon car- riage was not “historical,” they have failed to show why such error would warrant vacatur given that (1) Cablevision does not contest the propriety of con- sidering Verizon’s carriage as an unenumerated, non-statutory factor, and (2) the Bureau decided to order carriage despite its belief that WRNN had not been “historically carried” in the relevant communi- ties. Accordingly, we decline to vacate the FCC’s order based on this asserted error in the FCC’s analysis of the historical carriage factor. C. Grade B Contour In its 1997 FCC Order involving Cablevision and WRNN, the Commission stated that “Grade B con- tour coverage, in the absence of other determinative market facts (i.e.[,] ... a terrain obstacle such as a mountain range or a significant body of water), is an efficient tool to adjust market boundaries.” 1997 FCC Order, 12 F.C.C.R. at 12271 J 17. Cablevision contends that the Hudson River, the Long Island Sound, and the “skyline of New York City” consti- tute such terrain obstacles, and it was therefore in- consistent with the 1997 FCC Order for the FCC and the Bureau to weigh Grade B contour in WRNN’s favor here. Cablevision Br. at 38. The 1997 FCC Order itself torcefully rejects this reason- 15a ing, because it explicitly endorses the use of Grade B contour as proof of market in the New York City DMA-the same context in which Cablevision now contends that relying on Grade B contour is inap- propriate. Because the 1997 FCC Order establishes, rather than refutes, the relevance of Grade B con- tour in market modifications within the New York City DMA, the FCC’s decision here is consistent with its precedent. D. The Other Stations and Viewing Patterns Factors Cablevision also alleges error in the FCC’s treat- ment of the two remaining statutory factors. In the instant order, the FCC stated that Congress did not intend “the ‘coverage by other qualified stations’ fac- tor to bar a request for extending a station’s market when other stations could be shown to serve the communities at issue.” 2007 FCC Order, 22 F.C.C.R. at 21055-56 J 4. In essence, then, the FCC decided to give the fac- tor significant weight when a lack of coverage by other stations favored including a community in a station’s market, but to discount its importance when the existence of coverage arguably cut against inclusion. Cablevision argues that this decision “is directly contrary to... the statutory text.” Cablevi- sion Br. at 40. This argument is unavailing. The text of the statute directs the agency to consider a number of factors, and it is clear from the opinion that both the FCC and the Bureau did consider this factor. Upon doing so, the FCC saw no reason to depart from its normal policy, which is to discount the “other stations’ coverage” factor when it tends to cut against inclusion. Unsurprisingly, Cablevision 16a cites no decision of this court vacating a decision be- cause we disagree with an agency’s weighing of a statutory factor. The law is to the contrary. In in- terpreting another provision of the 1992 Cable Act that directs the FCC to undertake a factoral analy- sis, the D.C. Circuit concluded that giving little or no weight to a statutory factor, as long as the factor is expressly considered, does not violate the statute: [T]he statute by its terms merely requires the Commission to consider the... factors.... That means only that it must reach an express and considered conclusion about the bearing of a fac- tor, but is not required to give any specific weight to it. Therefore, when the Commission, after ex- pressly considering the potential role of the ... factor, ultimately concluded that it should not be given any weight, it did not violate the statute. Time Warner Entm’t Co. v. FCC, 56 F.3d 151, 175 (D.C, Cir. 1995) (internal quotation marks and cita- tions omitted). This sound reasoning is equally ap- plicable here. Cablevision also argues that the FCC improperly weighed the evidence with respect to the viewership patterns factor. This argument fails for the same reasons. II. The FCC’s Consideration of the Purposes of the Must-Carry Statute The market modification provision of the must- carry statute provides that the FCC may add or re- move communities from a local broadcast station’s market “to better effectuate the purposes of this sec- tion.” 47 U.S.C. § 534(h)(1)(C)G). Cablevision ar- gues that the FCC’s inclusion of the Long Island 17a communities in WRNN’s market contravened the purposes of must-carry in two ways. First, expand- ing WRNN’s market in fact frustrates the goal of “localism” by necessarily decreasing programming relevant to the community WRNN has traditionally served (the Kingston community). And second, re- warding WRNN’s actions with broader must-carry rights encourages gamesmanship which frustrates the purpose of must-carry, which is to preserve, but not expand, a broadcast station’s market. We reject the first argument because it incorrectly presumes that WRNN cannot increase Long Island-targeted programming without decreasing Kingston-targeted programming. We reject the second because it rests on a conception of the statute’s purpose that is overly narrow, unsupported by precedent, and con- trary to the language of the statute. According to Cablevision, the FCC’s decision de- feats the purposes of the must-carry statute because “{aJny targeting of other spokes [i.e., communities that are remote from ‘a DMA’s metropolitan center’] necessarily comes at the expense of the station’s community of license.” Cablevision Br. at 43. This argument rests on the false premise that WRNN’s programming consists entirely of either Kingston- specific programming or Long Island-specific pro- gramming. As Cablevision reminds us elsewhere, however, a great deal of WRNN’s content is “home- shopping” programming that targets neither King- ston nor Long Island specifically. See Cablevision Br. at 33 (claiming that 78% of WRNN program- ming in a representative week “consisted of home shopping and infomercials”). It is entirely possible, and Cablevision does not suggest otherwise, that WRNN could increase its Long Island-targeted pro- 18a gramming by decreasing its home-shopping pro- gramming, leaving its Kingston-targeted program- ming unaffected. And to the extent that a Kingston viewer might prefer certain home-shopping pro- gramming to programming concerning Long Island, we do not see how frustrating that preference un- dermines localism. Essentially, Cablevision’s claim is that, as a mat- ter of law, a cable company in a community that is outside a “DMA’s metropolitan center,” such as Long Island, should not be required to carry a station based in a different community that is also remote from the center, such as Kingston: in Cablevision’s parlance, a “spoke” cable company should not be re- quired to carry a station based in a different spoke. Congress, however, did not share that view, and, as the FCC points out, the default rule is that WRNN must be carried by cable operators throughout the New York City DMA. See 47 U.S.C. § 534(a)-(b), (h)(1)(C). Cablevision also contends that the FCC’s decision rewards “gamesmanship” because WRNN moved its transmitter and changed its programming simply to obtain must-carry privileges in other communities. Cablevision Br. at 46. In other words, they suggest that the FCC cannot award WRNN a regulatory benefit if WRNN has changed its conduct in an at- tempt to receive that benefit. This rule, applied uni- versally, would run counter to a central premise of the regulatory scheme that a regulated entity will change its conduct in socially desirable ways to achieve a regulatory benefit. Accordingly, we reject it. 19a Cablevision also argues that any decision that in- creases a station’s market is contrary to the purpose of the statute, because the purpose is “to return broadcasters to their ‘natural market,” Cablevision Br. at 47; thus, any FCC action which augments a broadcaster’s market contravenes this purpose. The purpose of the statute, however, is not to “preserve” a group of broadcast stations, or a particular concep- tion of a station’s market, but, inter alia, to “pre- servle] the benefits of free, over-the-air television,” and “promotle] the widespread dissemination of in- formation from a multiplicity of sources.” Turner I, 512 U.S. at 662. We do not think that these pur- poses are served only by granting broadcasters the minimum must-carry coverage necessary for sur- vival; or that these purposes are frustrated by ac- tions which result in a station’s greater prosperity. Accordingly, we conclude that the FCC did not vio- late the statutory admonition that market modifica- tions should be made “to better effectuate the pur- poses of this section.” 47 U.S.C. § 534(h)\(i)(C)(i). The remainder of Cablevision’s arguments on this point fail to persuade us otherwise. Ill. Cablevision’s First Amendment Challenge Cablevision argues that “compelled carriage of WRNN on Long Island violates the First Amend- ment on an as-applied basis.” Cablevision Br. at 51. We think that the Turner cases do not foreclose the possibility of a successful as-applied First Amend- ment challenge to the 1992 Cable Act’s market modification provisions. In this case, however, Ca- blevision has failed to demonstrate that the FCC applied the market modification provision unconsti- tutionally. 20a As a threshold matter, a party alleging violation of its First Amendment rights must show that the challenged government action actually regulates protected speech. Thus, in Turner I, the Court found it necessary to establish, as an “initial prem- ise,” that “[clable programmers and cable operators engage in and transmit speech,” and that “the must- carry rules,” in general, “regulate cable speech.” 512 U.S. at 636. Similarly, Cablevision here must ar- ticulate how the FCC’s order “interferes with [its] speech rights.” Time Warner Entm’t Co., 240 F.3d at 1129. This threshold requirement serves two interre- jated functions. Identifying the “burden” imposed by government action enables a court to undertake heightened scrutiny analysis: without understand- ing how a regulation burdens speech, a court cannot decide whether that burden is “no greater than is essential” to further the goals of the regulation in question. See United States v. O’Brien, 391 U.S. 367, 377 (1968). And the failure to identify the bur- den has an even more fundamental consequence: without a plausible allegation that the offensive conduct interferes with First Amendment rights or, put differently, that the interaction between gov- ernment and citizen “bring[s] into play the First Amendment,” id. at 376, a reviewing court has nei- ther a reason nor the ability to subject the conduct of the governmental actor to heightened scrutiny. The Turner I and Turner II Courts considered the First Amendment implications of the “must-carry provisions” taken as a whole, as distinguished from the market modification provisions at issue here, 21a and found that they posed two potential burdens on speech rights: First, the [must-carry] provisions restrain cable operators’ editorial discretion in creating pro- gramming packages by reducing the number of cable channels over which they exercise unfet- tered control. Second, the rules render it more difficult for cable programmers to compete for carriage on the limited channels remaining. Turner II, 520 U.S. at 214 (citation, alterations, and internal quotation marks omitted); accord Turner I, 512 US. at 637. Cablevision raises a similar, but not identical, First Amendment challenge to that raised in Turner I and Turner If. Cablevision presents an as-applied First Amendment challenge to the FCC’s order modifying the market of WRNN, pursuant to the provision of the must-carry statute on market de- terminations, 47 U.S.C. § 534(h)(1)(C)Gi). The chal- lenged order threatens the First Amendment inter- est of Cablevision in a similar manner to that de- scribed in Turner I and Turner II. The order re- duces the number of channels over which Cablevi- sion exercises editorial control by forcing it to carry WRNN, see Turner I, 520 U.S. at 213, ani it also makes it more difficult for the cable programming arm of Cablevision to compete for carriage on the remaining channels, td. In order to apply the appropriate level of scru- tiny, we must first determine whether the order is content based or content neutral. Turner J, 512 U.S. at 642. In Turner I, the Court concluded that the burdens imposed on cable operators as well as the benefits conferred on broadcast channels were con- 22a tent neutral. See id. at 643-44 (“Although the provi- sions interfere with cable operators’ editorial discre- tion by compelling them to offer carriage to a certain minimum number of broadcast stations, the extent of the interference does not depend upon the content of the cable operators’ programming. The rules im- pose obligations upon all operators, save those with fewer than 300 subscribers, regardless of the pro- grams or stations they now offer or have offered in the past.”); id. at 645 (noting that the selection of broadcast channels that must be carried on the ca- ble systems was “also unrelated to content”). The Turner I Court explicitly rejected the argu- ment that “the must-carry regulations are content based because Congress’ purpose in enacting them was to promote speech of a favored content.” Jd. at 646. Indeed, as the Court noted, when a cable sys- tem is required to “make room for a broadcast sta- tion, nothing would stop a cable operator from dis- placing a cable station that provides all local- or education-oriented programming with a broadcaster that provides very little.” Jd. at 648. However, separate from the must-carry provisions’ general re- quirements, the Turner I Court expressly declined to decide whether a market modification order moti- vated by a concern for localism would be content based or content neutral. See id. at 644 n.6. The Court suggested that such an order might confer “special benefits on the basis of content.” Jd. However, we think the order before us now is con- tent neutral. WRNN’s presumptive DMA would have included Nassau and Suffolk counties. It was Cablevision that first invoked the market modifica- tion provision to exclude these counties from 23a WRNN’s market. It succeeded based on the FCC’s concern, in part, that WRNN lacked a Grade B con- tour reaching Long Island. When WRNN, after ex- panding its Grade B contour, returned to the FCC seeking restoration of its presumptive DMA, Cable- vision argued that the station had failed to demon- strate that the various factors outlined in the mar- ket modification provision, including the local pro- gramming factor, weighed in WRNN’s favor. The Bureau and the FCC reached different conclusions on this factor, yet both agreed that the totality of circumstances no longer justified excluding Long Is- land communities from WRNN’s presumptive DMA. The FCC considered the amount of local program- ming provided by WRNN only in this context, v.e., in assessing the continued need to restrict a presump- tive market defined solely by geography. Moreover, WRNN’s local programming was an inconsequential factor in the FCC’s ultimate decision. Additionally, Cablevision has not alleged, much less proven, that the restoration of the Long Island communities to WRNN’s market under these circumstances was based on some illicit content-based motive. See id. at 652. We conclude, therefore, that the order is content neutral and deserving of intermediate scru- tiny. We have no trouble in concluding that the order “advances important governmental interests unre- lated to the suppression of free speech and does not burden substantially more speech than necessary to further these interests.” Turner II, 520 U.S. at 189 (citing O’Brien, 391 U.S. at 377). The burden im- posed by the order — the loss of control over one channel — is no greater than necessary to further the government’s interest in preserving a single 24a broadcast channel it found serves the local commu- nity. In sum, we conclude that the application of the market modification provision in this case does not violate the First Amendment. While we cannot rule out the possibility that the FCC’s order might inter- fere with speech rights in other ways, Cablevision has presented neither factual support nor even a theory of any such additional infringement. IV. Cablevision’s Fifth Amendment Challenge Finally, Cablevision asserts that by ordering it to carry WRNN, the FCC effected a per se taking un- der Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). The sine qua non of the takings analysis in Loretto, however, is “permanent physical occupation.” Jd. (emphasis added). This per se takings rule is “very narrow,” id. at 441, and its touchstone is “required acquiescence” to the oc- cupation of the property by an uninvited stranger or an “interloper with a government license.” FCC uv. Fla. Power Corp., 480 U.S. 245, 252-53 (1987); see also Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 374 (2d Cir. 2006) (“Physical takings (or physical in- vasion or appropriation cases) occur when the gov- ernment physically takes possession of an interest in property for some public purpose.”). Our own test for whether a regulation constitutes a permanent physical occupation, set forth in Southview Associ- ates, Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992), looks to (1) the permanency of the invasion, and (2) whether the invasion is an “absolute, exclusive physical occupation.” Id. at 94-95. In turn, we must examine the nature of the interference with “the bundle of rights that constitute ownership,” id. at 25a 95, such as the right to possess and exclude, the right to control the use of the property, and the right to sell the property. The initial determination — whether the invasion is physical — is primarily factual. Cf. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1357 (Fed. Cir. 2006) (“[T]he determination of whether government occupancy is ‘permanent’ is highly fact- specific.”). The fact finder must determine, in the first instance, whether any physical assets are in- volved. See, e.g., Qwest Corp. v. United States, 48 Fed. Cl. 672, 689 (2001) (“In determining whether plaintiffs property has been subject to a physical taking, our initial inquiry must focus on the nature of the property at issue. What are the physical as- sets involved?”). The FCC found that the transmis- ‘sion of WRNN over the Cablevision system did not require installation of any equipment at Cablevi- sion’s facilities. “Rather, a programming stream is transmitted in bits of data over cable bandwidth through electrons or photons at the speed of light.” 2007 FCC Order, 22 F.C.C.R. at 21058 J 8. It fur- ther found that Cablevision “retains complete con- trol over its property.” Jd. We see no reason to dis- turb these findings or the conclusion that the transmission of WRNN’s signal does not involve a physical occupation of Cablevision’s equipment or property. And Cablevision effectively conceded that this physicality is absent here when it argued in its repiy brief that “[t]he result [under Loretto | should be no different when the occupation is not of a physical pipeline but of an electronic one.” Cablevi- sion Reply Br. at 25. 26a The amorphous nature of the alleged “taking” suggests that the takings claim here fits more com- fortably within the Supreme Court’s “regulatory taking” analytical framework. See Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104 (1978). In order to establish a regulatory taking, Cablevi- sion was required to show that the regulation had an economic impact that interfered with “distinct investment-backed expectations.” Jd. at 124. Ca- blevision has presented no such evidence despite its “heavy burden” on this issue, Tobe, 464 F.3d at 375, and any regulatory taking theory must therefore fail. CONCLUSION Because we find no abuse of discretion or consti- tutional violation in the FCC’s decision to include the relevant Long Island communities in WRNN’s market for must-carry purposes, we DENY the peti- tion for review. In accordance with our order of March 14, 2008, the stay of the FCC order pending judicial review is vacated, and the applicable dead- line for Cablevision’s compliance is one week from the issuance of the mandate in this case. 27a APPENDIX B Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of WRNN License Company, LLC Petition for Modification of Television Market of Television Station WRNN-DT, Kingston, New York CSR 6956-A MEMORANDUM OPINION AND ORDER Adopted: May 23, 2006 Released: May 25, 2006 By the Deputy Chief, Policy Division, Media Bureau: I, INTRODUCTION 1. WRNN License Company, LLC (“WRNN”), li- censee of television station WRNN-DT, Kingston, New York (“WRNN-DT” or the “Station”), filed the above captioned petition for special relief, seeking to modify the Station’s market to include all cable communities located in Nassau and Suffolk Coun- ties that are served by Cablevision Systems Corpo- ration’s (“Cablevision”) cable systems in which the Station is not carried (the “Communities”). Cablevi- sion filed an opposition to the petition and WRNN filed a reply. Cablevision filed a surreply, and WRNN filed a response. For the reasons stated be- low, we grant the petition in part and deny the peti- tion in part. 28a Il. BACKGROUND 2. Pursuant to Section 614 of the Communica- tions Act and implementing rules adopted by the Commission in Implementation of the Cable Televi- sion Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“Must Carry Order”),| commercial television broadcast sta- tions are entitled to assert mandatory carriage rights on cable systems located within the station’s market. A station’s market for this purpose is its designated market area (“DMA”), as defined by Nielsen Media Research.2, A DMA is a geographic market designation that defines each television market exclusive of others, based on measured view- ing patterns. Each county in the United States is assigned to a market based on the home-market sta- tions that receive a preponderance of total viewing hours in the county. For purposes of this calcula- tion, both over-the-air and cable television viewing 1 8 FCC Red 2965, 2976-2977 (1993). 2 Section 614(h)(1)(C) of the Communications Act, as amended, provides that a station’s market shall be determined by the Commission by regulation or order using, where avail- able, commercial publications which delineate television mar- kets based on viewing patterns. See 47 U.S.C. § 534(h)(1X(C). Section 76.55(e) of the Commission’s rules requires that a commercial broadcast television station’s market be defined by Nielsen Media Research’s DMAs. 47 C.F.R. § 76.55(e); Defini- tion of Markets for Purposes of the Cable Television Broadcast Signal Carriage Riles, 14 FCC Red 8366 (1999)(“Modification Final Report and Order”). 29a are included.? 3. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station’s television market to better effectu- ate the purposes of this section.4 4. In considering such requests, the 1992 Cable Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as — (1) whether the station, or other stations lo- cated in the same area, has been historically car- ried on the cable system or systems within such community; (II) whether the television station provides cov- erage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage 3 For a more complete description of how counties are allo- cated, see Nielsen Media Research’s Nielsen Station Index: Methodology Techniques and Data Interpretation. 4 47US.C. § 534(h)(1)(C). 30a or coverage of sporting and other events of inter- est to the community; and (IV) evidence of viewing patterms in cable and non-cable households within the areas served by the cable system or systems in such community.5 5. The legislative history of the provision states that: where the presumption in favor of [DMA] car- riage would result in cable subscribers losing ac- cess to local stations because they are outside the [DMA] in which a local cable system operates, the FCC may make an adjustment to include or ex- clude particular communities from a television station’s market consistent with Congress’ objec- tive to ensure that television stations be carried in the area in which they serve and which form their economic market. * BS * * [This subsection] establishes certain criteria that the Commission shall consider in acting on re- quests to modify the geographic area in which stations have signal carriage rights. These fac- tors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station’s market.® 6. In the Modification Final Report and Order, the Commission, in an effort to promote administra- tive efficiency, adopted a standardized evidence ap- 5 Must Carry Order, 8 FCC Red at 2976 (1993). 6 H.R. Rep. 102-628, 102d Cong., 2d Sess 97 (1992). 3la proach for modification petitions that requires the following evidence be submitted: (1) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend locations, terrain features that would affect sta- tion reception, mileage between the community and the television station transmitter site, trans- portation routes and any other evidence contrib- uting to the scope of the market. (2) Grade B contour maps delineating the sta- tion’s technical service area and showing the loca- tion of the cable system headends and communi- ties in relation to the service areas. Note: Service area maps using Longley-Rice (ver- sion 1.2.2) propagation curves may also be in- cluded to support a technical service exhibit.7 (3) Available data on shopping and labor pat- terns in the local market. (4) Television station programming information derived from station logs or the local edition of the television guides. * The Longley-Rice model provides a more accurate repre- sentation of a station’s technical coverage area because it takes into account such factors 4s mountains and valleys that are not specifically reflected in a traditional Grade B contour analysis. In situations involving mountainous terrain or other unusual geographical features, Longley-Rice propagation stud- ies can aid in determining whether or not a television station actually provides local service to a community under factor two of the market modification test. 32a (5) Cable system channel line-up cards or other exhibits establishing historic carriage, such as television guide listings. (6) Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday- Saturday, 7 a.m., or an equivalent time period) for both cable and noncable households or other specific audience indicia, such as station advertis- ing and sales data or viewer contribution re- cords.8 Petitions for special relief to modify television mar- kets that do not include the above evidence shal] be dismissed without prejudice and may be re-filed at a later date with the appropriate filing fee. The Mar- ket Modification Final Report and Order provides that parties may continue to submit whatever addi- tional evidence they deem appropriate and rele- vant.9 7. In Carriage of Digital Television Broadcast Signals, the Commission concluded that under Sec- tion 614(a) of the Act, a digital-only television sta- tion has mandatory carriage rights, and amended the rules accordingly.!° The Commission has estab- 8 47 C.F.R. § 76.59'b). ® Market Modification Final Report and Order, 14 FCC Red at 8389. \0 See Carriage of Digital Television Broadcast Signals, 16 FCC Red 2598, 2606 (2001)“D7TV Must Carry Report and Or- der”); 47 C.F.R. § 76.64(f)(4). The Commission concluded that for purposes of supporting the conversion to digital signals and facilitating the return of the analog spectrum, a television sta- tion may demand that one of its high definition digital 33a lished a framework for analyzing market modifica- tions for digital television stations.'! The Commis- sion stated that Nielsen’s market designations, pub- lications, and assignments for the analog television market should continue to be binding on broadcast stations transitioning to digital television broadcast- ing. The presumption is that the market of the sta- tion’s digital signal is coterminous with the station's market area for its analog signal during the transi- tion period.!2 The Commission also found that the statutory factors in Section 614(h), the current proc- ess for requesting market modifications, and the evi- dence needed to support such petitions, will be ap- plicable to digital television modification petitions during the transition period when television sta- tions broadcast both an analog signal and a digital signal.!5 The Commission recognized that the tech- nical coverage area of a digital television signal may not exactly replicate the technical coverage area of the analog television signal. Therefore, in deciding DTV market modification cases, the Commission (“HDTV”) or standard definition digital (“SDTV”) television signals be carried on the cable system for delivery to subscrib- ers in either a digital or an analog format. DTV Must Carry Report and Order, 16 FCC Red at 2630. ‘1! See DTV Must Carry Report and Order, 16 FCC Red at 2635-36. 12 We note that in adopting technical rules for the digital transmission of broadcast signals, the Commission attempted to insure that a station’s digital over-the-air coverage arca would replicate as closely as possible its current over-the-air analog coverage area. See Sixth DTV Report and Order, 12 FCC Red 14588, 14605 (1997). 18 See DTV Must Car [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1541%3A1. Public record. Not legal advice.