Time Warner Entertainment Co. v. United States

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

         Argued December 3, 1999    Decided May 19, 2000 

                           No. 96-5272

              Time Warner Entertainment Co., L.P., 
                             Appellee

                                v.

                    United States of America, 
                            Appellant

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 92cv02494)

     Robert D. Joffe argued the cause for appellee.  With him 
on the briefs was Henk Brands. Stuart W. Gold entered an 
appearance.

     Jacob M. Lewis, Attorney, U.S. Department of Justice, 
argued the cause for appellant.  With him on the brief were 
David W. Ogden, Acting Assistant Attorney General, Mark B. 
Stern, Attorney, Wilma A. Lewis, U.S. Attorney, Christopher 

J. Wright, General Counsel, Federal Communications Com-
mission, Daniel M. Armstrong, Associate General Counsel, 
and James M. Carr, Counsel. William E. Kennard, General 
Counsel, and C. Grey Pash, Jr., Counsel, entered appear-
ances.

     Andrew Jay Schwartzman, Angela J. Campbell and Randi 
M. Albert were on the brief for amici curiae Center for Media 
Education, Association of Independent Video and Filmmak-
ers, National Association of Artists' Organizations, National 
Alliance for Media Arts and Culture, Consumer Federation of 
America, National Council of Senior Citizens, and Office of 
Communication, Inc. of the United Church of Christ.

     Before:  Ginsburg, Rogers and Tatel, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Ginsburg.

     Ginsburg, Circuit Judge:  The Time Warner Entertainment 
Company and the United States appeal from portions of the 
judgment in Daniels Cablevision, Inc. v. United States, 835 
F. Supp. 1 (D.D.C. 1993).  At issue is the facial constitutional-
ity of two provisions of the Cable Television Consumer Pro-
tection and Competition Act of 1992, Pub. L. No. 102-385, 106 
Stat. 1460 (1992 Cable Act).  The "subscriber limits provi-
sion" directs the Federal Communications Commission to 
limit the number of subscribers a cable operator may reach.  
47 U.S.C. s 533(f)(1)(A).  The "channel occupancy provision" 
directs the Commission to limit the number of channels on a 
cable system that may be devoted to video programming in 
which the operator has a financial interest.  Id. 
s 533(f)(1)(B).  Time Warner argues that both provisions 
facially--that is, no matter how sensitively or sensibly they 
might be implemented--violate the First Amendment to the 
Constitution of the United States;  the Commission argues 
the opposite.  We conclude that both provisions are facially 
constitutional.

                          I. Background

     Time Warner and other owners of cable television systems 
challenged the constitutionality of the subscriber limits, the 
channel occupancy, and various other provisions of the 1992 

Cable Act in Daniels Cablevision.  Upon cross-motions for 
summary judgment, the district court held that the subscrib-
er limits provision is unconstitutional, see 835 F.Supp. at 10, 
but the channel occupancy provision is constitutional, see id. 
at 7 & n.11.*  The Government appealed the former ruling 
while Time Warner appealed the latter.

     We consolidated both appeals with Time Warner's petition 
to this court for review of the regulations the Commission had 
promulgated to implement the two provisions.  See Time 
Warner Entertainment Co., L.P. v. Federal Communications 
Comm'n (Time Warner), 93 F.3d 957, 979-80 (D.C. Cir. 1996).  
In September 1999, however, after the consolidated cases had 
been scheduled for oral argument, the Commission initiated 
further rulemaking proceedings with respect to the two provi-
sions.  Consequently, we severed Time Warner's statutory 
challenges from its petition for review of the regulations, held 
the latter in abeyance pending the completion of the further 
rulemaking, and heard oral argument on the constitutionality 
of the two statutory provisions that we address today.

                           II. Analysis

     We review de novo the district court's grant of summary 
judgment.  See, e.g., Aka v. Washington Hospital Center, 156 
F.3d 1284, 1288 (D.C. Cir. 1998).

A.   The Subscriber Limits Provision

     1.   The Standard of Review
          
     Time Warner argues that the subscriber limits provision is 
a content-based restriction of its ability to communicate with 
its audience, and as such is subject to strict scrutiny.  See 

__________
     * The district court at least appears to have found the channel 
occupancy provision constitutional on its face.  The court noted in a 
footnote that "[l]ike the other vertical integration restrictions, the 
channel occupancy limits appear unrelated to content.  Whether or 
not the regulations ultimately promulgated by the Commission will 
pass constitutional muster under [intermediate scrutiny] is, of 
course, at this point unclear."  835 F. Supp. at 7 n.11.

Turner Broadcasting System, Inc. v. Federal Communica-
tions Comm'n (Turner I), 512 U.S. 622, 642 (1994) (Court has 
applied "the most exacting scrutiny to regulations that sup-
press, disadvantage, or impose differential burdens upon 
speech because of its content").  The Government denies that 
the subscriber limits provision is content-based, and argues 
for an intermediate level of scrutiny.  See id.

     In order to determine the applicable standard of review, 
then, we must decide whether the subscriber limits provision 
is content-based.  In general, the "principal inquiry in deter-
mining content neutrality ... is whether the government has 
adopted a regulation of speech because of [agreement or] 
disagreement with the message it conveys."  Id. (quoting 
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).  A 
law that singles out speech based upon the ideas or views 
expressed is content-based, whereas a law that "confer[s] 
benefits or impose[s] burdens on speech without reference to 
the ideas or views expressed" is most likely content-neutral.  
Id. at 643;  see also id. at 661 (law that does not "pose ... 
inherent dangers to free expression, or present ... potential 
for censorship or manipulation, [will not] ... justify applica-
tion of the most exacting level of First Amendment scruti-
ny").

     As a cable operator, Time Warner exercises editorial dis-
cretion in selecting the programming it will make available to 
its subscribers.  Time Warner argues that the congress limit-
ed its ability to speak by restricting the number of subscrib-
ers--and therefore potential viewers--it may reach with the 
programming it has selected.  That this limitation is content-
based, according to Time Warner, is evident from the Senate 
Report that accompanied the final version of the 1992 Cable 
Act.  See H.R. Conf. Rep. No. 102-862, at 81-82 (1992), 
reprinted in 1992 U.S.C.C.A.N. 1133, 1133, 1263-64 (adopting 
provisions of Senate Bill, as described in Senate Report, S. 
Rep. No. 102-92, at 32 (1991) [hereinafter S. Rep.]).

     That Report indicated the Congress was concerned about 
increasing concentration of ownership and control in the cable 
industry:

          ...  First, there are special concerns about concentra-
     tion of the media in the hands of a few who may control 
     the dissemination of information.  The concern is that 
     the media gatekeepers will (1) slant information accord-
     ing to their own biases, or (2) provide no outlet for 
     unorthodox or unpopular speech because it does not sell 
     well, or both....
     
          ....
     
          The second concern about horizontal concentration is 
     that it can be the basis of anticompetitive acts.  For 
     example, a market that is dominated by one buyer of a 
     product, a monopsonist, does not give the seller any of 
     the benefits of competition....
     
S. Rep. at 32-33.

     Time Warner contends that the Congress's concern that 
media gatekeepers would "slant" information or fail to pro-
vide outlets for "unorthodox" speech reflects a preference for 
one type of content and an intent to suppress another, 
namely, the speech of cable operators.  The Company likens 
the Congress's efforts to limit its speech to the restraints the 
Supreme Court held unconstitutional in Buckley v. Valeo, 424 
U.S. 1 (1976), and First National Bank of Boston v. Bellotti, 
435 U.S. 765 (1978).  Buckley involved a federal campaign 
finance law aimed at "equalizing the relative ability of individ-
uals and groups to influence the outcome of elections" by 
limiting their political expenditures.  Id. at 48.  The Court 
rejected "the concept that government may restrict the 
speech of some elements of our society in order to enhance 
the relative voice of others [as] wholly foreign to the First 
Amendment."  Id. at 48-49.  Bellotti similarly involved a 
state statute that prohibited certain types of businesses from 
making contributions or expenditures for the purpose of 
influencing particular ballot initiatives.  The Court reiterated 
the point it had made in Buckley:  A state's effort to control 
some voices in order to "enhance the relative voices" of less 
influential speakers "contradicts basic tenets of First Amend-
ment jurisprudence."  Bellotti, 435 U.S. at 791 n.30 (noting 
exception "in the special context of limited access to the 

channels of communication" and citing Red Lion Broadcast-
ing Co. v. FCC, 395 U.S. 367 (1969)).

     The expenditure limit at issue in Buckley, like the prohibi-
tion at issue in Bellotti, was content-based because it "was 
concerned with the communicative impact of the regulated 
speech."  Turner I, 512 U.S. at 658.  As the Supreme Court 
made quite clear in Turner I, however, making way for some 
speakers, in the cable context where that necessarily means 
limiting the speech of others, is not inherently content-based.  
Id. at 643-45.  There the Court determined that the "must-
carry" provision of the 1992 Cable Act, which required cable 
operators to "carry the signals of a specified number of local 
broadcast television stations," id. at 630, was not content-
based, and applied intermediate scrutiny in its review of that 
provision.  Although the must-carry obligation restricted ca-
ble operators' speech by limiting the number of channels they 
could program at will, it did so in a content-neutral fashion 
and for a content-neutral reason, namely, to protect the 
interests of non-cable subscribers in maintaining the viability 
of the television broadcasting industry.  Id. at 646.

     According to Time Warner, the subscriber limits provision 
expresses a hostility to the content of large cable operators' 
speech that did not underlie the must-carry obligation:  The 
subscriber limits are meant to restrict large cable operators 
from presenting information in accord with their own "bias-
es," in order thereby to promote a diversity of views in cable 
programming.  Increasing the diversity of programming is 
not, Time Warner argues, among the ends the Supreme 
Court deemed content-neutral in Turner I.

     Time Warner is correct that the Court's acceptance of the 
must-carry obligation as content-neutral rested in large part 
upon the Court's understanding that the purpose of the 
statute was to maintain the availability of broadcast television 
for those without cable;  that does not render Turner I wholly 
inapplicable, however.  The Court also identified the "bottle-
neck monopoly power" of the cable operator, arising out of 
the operator's "control over most (if not all) of the television 
programming that is channeled into the subscriber's home," 

as the threat to broadcast television.  512 U.S. at 656-57, 661.  
In enacting the subscriber limits, the Congress was con-
cerned that cable operators might use that same bottleneck 
power to exclude other providers of cable programming.  As 
with the must-carry obligation, its concern was not with what 
a cable operator might say, but that it might not let others 
say anything at all in the principal medium for reaching much 
of the public.  See id. at 657 ("The First Amendment's 
command that government not impede the freedom of speech 
does not disable the government from taking steps to ensure 
that private interests not restrict, through physical control of 
a critical pathway of communication, the free flow of informa-
tion and ideas").  The must-carry obligation and the subscrib-
er limits provision both preserve for consumers some compe-
tition in the provision of programming.  The must-carry 
obligation preserves competition between broadcasters and 
the cable operator, while the subscriber limits preserve com-
petition between the cable operator and its affiliated pro-
grammers on the one hand and unaffiliated providers of cable 
programming on the other.  By placing a value upon diversity 
and competition in cable programming the Congress did not 
necessarily also value one speaker, or one type of speech, 
over another;  it merely expressed its intention that there 
continue to be multiple speakers.

     Finally, Time Warner argues that the subscriber limits 
provision improperly singles out for regulation the cable 
medium, as opposed to other video programmers such as 
Direct Broadcast Satellite (DBS) operators.  Here it refers 
us to Turner I, 512 U.S. at 659, where the Court observed, 
"Regulations that discriminate among media, or among differ-
ent speakers within a single medium, often present serious 
First Amendment concerns."  According to Time Warner, 
with the subscriber limits the Congress "targeted a small 
number of [the various] speakers" capable of purchasing and 
providing video programming, id. at 660, without providing 
any justification for limiting the regulation to the cable medi-
um.

     In Turner I, however, the Court rejected Turner Broad-
casting's claim of discrimination, stating that "[i]t would be 

error to conclude ... that the First Amendment mandates 
strict scrutiny for any speech regulation that applies to one 
medium (or a subset thereof) but not others."  Id. at 660.  
Indeed, the same unique characteristic of the cable medium 
that justified the imposition of the must-carry obligation is 
also invoked by the Government to justify the subscriber 
limits, namely, "the bottleneck monopoly power exercised by 
cable operators."  Id. at 661.  In Turner I this bottleneck 
power was seen to jeopardize the viability of broadcast televi-
sion;  in this case, it arguably threatens diversity and compe-
tition in the provision of cable programming.  As the Govern-
ment notes, other video programmers such as DBS lack the 
bottleneck power of cable operators;  nor do they reach 
nearly as many households as does cable.

     In sum, upon examination of the statute, the Senate Report 
that accompanied it, and the Supreme Court's analysis of the 
must-carry provision at issue in Turner I, we conclude that 
the subscriber limits provision is not content-based.  In order 
to determine whether it is constitutional, therefore, we apply 
intermediate, rather than strict scrutiny.  Id. at 662.

     2.   The Merits
          
     A content-neutral regulation of speech "will be sustained 
under the First Amendment if it [1] advances important 
governmental interests unrelated to the suppression of free 
speech and [2] does not burden substantially more speech 
than necessary to further those interests."  Turner Broad-
casting System, Inc. v. Federal Communications Comm'n 
(Turner II), 520 U.S. 180, 189 (1997) (citing United States v. 
O'Brien, 391 U.S. 367, 377 (1968)).  If a regulation on speech 
is intended to redress an actual or an anticipated harm to an 
important governmental interest, then the Government "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."  Turner I, 512 U.S. at 
664.  Our review of the Congress's predictive judgments is 
deferential;  we ask only whether, "in formulating its judg-
ments, Congress has drawn reasonable inferences based on 
substantial evidence."  Turner II, 520 U.S. at 195.  Finally, 

we will uphold a regulation if the important governmental 
interest in question "would be achieved less effectively absent 
the regulation" and the regulation does not "burden substan-
tially more speech than is necessary to further that interest."  
Id. at 213-14 (quoting Turner I, 512 U.S. at 662).

     As to advancing an important governmental interest, the 
Congress enacted the subscriber limits based upon two stated 
concerns:  that cable operators would impose their own biases 
upon the information they disseminate, and that a few domi-
nant cable operators might preclude new programming ser-
vices from attaining the critical mass audience necessary to 
survive.  See S. Rep. at 32-33.  Time Warner does not argue 
that the Congress failed to identify an important governmen-
tal interest, but rather faults the Congress for having acted 
without having made findings, and without having evidence 
upon which it could have made findings, that either of these 
problems is a real one.  See, e.g., Reno v. American Civil 
Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 2348 (1997) 
(invalidating portion of Communications Decency Act "in the 
light of the absence of any detailed findings by the Congress, 
or even hearings addressing the special problems of the 
CDA").

     According to Time Warner, cable operators in fact can 
neither bias the flow of information nor obstruct the expres-
sion of unpopular speech because other statutory provisions 
require them to carry independent programming, including 
public, educational, and governmental (PEG) programming, 
and the programming on leased access channels and local 
broadcast stations.  See 47 U.S.C. ss 531, 532, 534 & 535.  As 
for the concern that cable operators might erect barriers to 
the entry of new programming services, Time Warner argues 
that the Congress did not establish either that cable opera-
tors have attempted to exclude new cable programmers, or 
that they have an incentive to do so.

     The Government responds that the promotion of diversity 
in ideas and speech, as well as the preservation of competi-
tion, are important governmental interests, and that the 
Congress reasonably viewed increased concentration in the 

cable industry as a threat to both diversity and competition.  
The Government acknowledges that the 1992 Cable Act re-
quires cable operators to carry PEG and several other types 
of local programming, but argues that these requirements 
were not meant directly to preserve competition, nor do they 
promote diversity in the sources of cable programming at the 
national level.

     The Senate Report accompanying the 1992 Cable Act noted 
that concentration of ownership had increased dramatically:  
by 1990, the five largest cable operators served nearly half 
the country's cable subscribers.  S. Rep. at 32.  Witnesses 
testified that as a result of this increase in concentration "the 
large MSOs [multiple system operators] have the market 
power to determine what programming services can 'make it' 
on cable."  S. Rep. at 33.  Based upon this and related 
evidence, the Congress found that "[t]he potential effects of 
...  concentration [in the cable industry] are barriers to 
entry for new programmers and a reduction in the number of 
media voices available to consumers."  47 U.S.C. s 521(a)(4).  
It also found that "[t]here is a substantial governmental and 
First Amendment interest in promoting a diversity of views 
provided through multiple technology media."  Id. 
s 521(a)(6).  We conclude that the Congress drew reasonable 
inferences, based upon substantial evidence, that increases in 
the concentration of cable operators threatened diversity and 
competition in the cable industry.  See Turner II, 520 U.S. at 
195-96 (discussing deference due to Congress's findings).

     As to burdening more speech than necessary, Time Warner 
argues that subscriber limits will not increase the diversity of 
information sources available to the public in any locale.  
Nor, we are told, are subscriber limits necessary in order to 
promote competition;  the antitrust laws, as well as the anti-
discrimination provision of the 1992 Cable Act, see 47 U.S.C. 
s 536(a)(3), provide a sufficient check upon any potentially 
anticompetitive conduct by cable operators.

     Although we cannot say that a national ownership cap will 
surely increase the diversity of programming available at the 
local level, neither are we required to do so in order to uphold 

the statute as constitutional.  See, e.g., United States v. 
Albertini, 472 U.S. 675, 689 (1985) ("The validity of [a] 
regulation[ ] does not turn on a judge's agreement with the 
responsible decisionmaker concerning the most appropriate 
method for promoting significant government interests").  It 
is enough that, having determined that "[c]oncentration has 
grown dramatically in the cable industry," S. Rep. at 32, the 
Congress reasonably concluded that this concentration threat-
ened the diversity of information available to the public and 
could form a barrier to the entry of new cable programmers.  
That is hardly an unreasonable inference.  See Federal Com-
munications Comm'n v. National Citizens Committee for 
Broadcasting, 436 U.S. 775, 780 (1978);  Phillip E. Areeda et 
al., Antitrust Law p 420a (1995).

     Nor is it a fatal flaw that the subscriber limits provision 
focuses upon behavior already arguably proscribed by other 
laws.  In the subscriber limits provision the Congress took a 
structural approach to the regulation of cable operators, 
whereas the antidiscrimination provision of the 1992 Cable 
Act and the antitrust laws are behavioral prohibitions.  As a 
structural limitation, the subscriber limits provision adds a 
prophylaxis to the law and avoids the burden of individual 
proceedings to remedy particular instances of anticompetitive 
behavior.  Cf. Turner II, 520 U.S. at 222-23 (dismissing 
petitioner's suggestion that antitrust enforcement or an ad-
ministrative complaint procedure is an adequate alternative to 
must-carry obligation:  "Congress could conclude ... that the 
considerable expense and delay inherent in antitrust litiga-
tion, and the great disparities in wealth and sophistication 
between the average independent broadcast station and aver-
age cable system operator, would make these remedies inade-
quate substitutes").  In sum, Time Warner has not demon-
strated that the subscriber limits provision is on its face 
either unnecessary or unnecessarily overburdensome.

B.   The Channel Occupancy Provision

     1.   The Standard of Review
          
     The channel occupancy provision requires the Commission 
to establish limits upon "the number of channels on a cable 

system that can be occupied by a video programmer in which 
a cable operator has an attributable interest."  47 U.S.C. 
s 533(f)(1)(B).  Time Warner likens this provision to "a law 
prohibiting newspapers from devoting more than a fraction of 
their columns to editorial content of their own."  That this 
restriction is content-based, it argues, is evident from the 
Senate Report:

          Vertical integration in the cable industry .... gives 
     cable operators the incentive and ability to favor their 
     affiliated programming services.  For example, the cable 
     operator might give its affiliated programmer a more 
     desirable channel position than another programmer, or 
     even refuse to carry other programmers.
     
          ....
     
          [The channel occupancy provision] is designed to in-
     crease the diversity of voices available to the public.  
     Some [MSOs] own many programming services.  It 
     would be unreasonable for them to occupy a large per-
     centage of channels on a cable system.
     
          The intent of this provision is to place reasonable 
     limits on the number of channels that can be occupied by 
     each MSO's programming services.
     
S. Rep. at 25, 80.

     Time Warner argues that because the Congress expressed 
concern that cable operators might favor their affiliated pro-
gramming services the legislature's "stated design was to 
suppress cable operators' speech," and to advance the speech 
of nonaffiliated programmers.  Again analogizing itself to a 
newspaper publisher, see Miami Herald Publishing Co. v. 
Tornillo, 418 U.S. 241, 255-56 (1974), Time Warner argues 
that a cable operator has a constitutional right to favor its 
own speech.  By interfering with that right in order to alter 
the mix of programming available on cable, the Congress has 
impermissibly regulated the content of cable operators' 
speech.

     A cable operator is unlike a newspaper publisher, however, 
in the one respect crucial to the Congress's reason for 

enacting the channel occupancy provision:  A newspaper pub-
lisher does not have the ability to exclude competing publica-
tions from its subscribers' homes.  The cable operator's bott-
leneck monopoly is a physical and economic barrier to such 
intra-medium competition.  The channel occupancy provision 
responds in kind, without regard to the content of either the 
cable operator's speech or that of the unaffiliated program-
mer for which it secures an outlet.  See Turner I, 512 U.S. at 
656.

     Nor does the Congress's wanting to ensure a multiplicity of 
voices on cable inherently bespeak a preference for or a bias 
against the content of any speech.  That is why, in Time 
Warner, we upheld under intermediate scrutiny the "leased 
access provision" of the 1992 Cable Act.  That provision 
requires cable operators to set aside a percentage of their 
channels for commercial use by unaffiliated programmers in 
order both to bring "the widest possible diversity of informa-
tion sources" to cable subscribers and "to promote competi-
tion in the delivery of diverse sources of video programming."  
93 F.3d at 968-69.  In that case, we rejected Time Warner's 
argument that the leased access provision was a content-
based restriction, and therefore subject to strict scrutiny, 
because nothing in the statute favored or disfavored speech 
on the basis of its content:  "The statutory objective ... [is] 
framed in terms of the sources of information rather than the 
substance of the information."  Id. at 969 (citing Associated 
Press v. United States, 326 U.S. 1, 20, 65 (1945)).

     Time Warner now argues that whereas the objective of the 
leased access provision was to promote speech from various 
sources without regard to content, the channel occupancy 
provision is meant to limit speech from a particular type of 
source and therefore necessarily imposes a content-based 
restriction.  Here it refers us to the statement in the Senate 
Report that cable operators may have "the incentive and 
ability to favor" their own or an affiliate's speech.  S. Rep. at 
25.  In response, the Government explains, and we agree, 
that the legislative concern was not with the speech of a 
particular source but solely with promoting diversity and 
competition in the cable industry.  Like the leased access 

provision, that is, the focus of the channel occupancy provi-
sion is upon the source of speech, not its content.  See Time 
Warner, 93 F.3d at 969 (the "qualification [of nonaffiliates] to 
lease time on [a cable operator's] channels depends not on the 
content of their speech, but on their lack of affiliation with the 
operator, a distinguishing characteristic stemming from con-
siderations relating to the structure of cable television").

     We recognize, of course, the possibility that a seemingly 
neutral limitation may have been crafted in such a way as to 
single out for regulation the speech of some group that the 
legislature finds objectionable.  See Minneapolis Star & 
Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 
580, 592 (1983) (noting that result in Grosjean v. American 
Press Co., 297 U.S. 233 (1936), "may have been attributable in 
part to the perception on the part of the Court that the State 
imposed the tax with an intent to penalize a selected group of 
newspapers"). There is not a shred of evidence, however, that 
such an illicit consideration underlies the channel occupancy 
provision, and indeed Time Warner stops well short of claim-
ing otherwise.  We are therefore confident that the channel 
occupancy provision is content-neutral and subject only to 
intermediate scrutiny.

     2.   The Merits
          
     In applying intermediate scrutiny, we inquire "not whether 
Congress, as an objective matter, was correct" that the 
channel occupancy provision is necessary to increase the 
diversity of voices available to the public via cable, but rather 
"whether the legislative conclusion was reasonable and sup-
ported by substantial evidence in the record before Con-
gress."  Turner II, 520 U.S. at 211.  Time Warner argues 
that the Congress's reason for enacting the channel occupan-
cy provision--to prevent cable operators from favoring affili-
ated programmers and possibly even excluding others--ad-
dresses only a speculative harm because the Congress had no 
evidence that such exclusionary conduct actually had oc-
curred.  On the contrary, Time Warner contends, a cable 
operator has an incentive to contract with unaffiliated pro-
grammers to the extent that doing so will increase the 

attractiveness of the video programming packages it offers to 
subscribers;  this incentive is reinforced by increased competi-
tion from DBS and other alternative providers of video 
programming.

     Nothing in these protestations demonstrates that the Con-
gress's legislative conclusion was either unreasonable or un-
supported by substantial evidence.  See Turner II, 520 U.S. 
at 211.  The findings in the 1992 Cable Act document the 
Congress's concerns with affiliation between cable operators 
and cable programmers:

     The cable industry has become vertically integrated;  
     cable operators and cable programmers often have com-
     mon ownership.  As a result, cable operators have the 
     incentive and ability to favor their affiliated program-
     mers.  This could make it more difficult for noncable-
     affiliated programmers to secure carriage on cable sys-
     tems.  Vertically integrated program suppliers also have 
     the incentive and ability to favor their affiliated cable 
     operators over nonaffiliated cable operators and pro-
     gramming distributors using other technologies.
     
47 U.S.C. s 521(a)(5).  The Senate Report accompanying the 
Act discusses the evidence upon which the Congress based 
these conclusions.  Time Warner is of course correct that a 
cable operator has an incentive to offer an attractive package 
of programs to consumers, but the company does not deny 
that a cable operator also has an incentive to favor its 
affiliated programmers;  where the two forces are in conflict, 
the operator may, as a rational profit-maximizer, compromise 
the consumers' interests.  Hence, the concern of the Con-
gress is well grounded in the evidence and a bit of economic 
common sense.

     Finally, Time Warner argues that the channel occupancy 
provision is unnecessary in light of the anti-discrimination 
provision of the 1992 Cable Act as well as the antitrust laws.  
As we noted earlier, however, a prophylactic, structural limi-
tation is not rendered unnecessary merely because pre-
existing statutes impose behavioral norms and ex post reme-
dies.  Cf. Turner II, 520 U.S. at 222-23.

                         III. Conclusion

     For the foregoing reasons, we conclude that the subscriber 
limits and channel occupancy provisions do not run afoul of 
the first amendment.  The judgment of the district court is 
reversed insofar as it held that the subscriber limits provision 
is unconstitutional, and affirmed insofar as it held that the 
channel occupancy provision is constitutional.

                                                           So ordered.