concurring.
I concur. I believe that Plaintiffs have not made a case under the First Amendment that would invalidate the must-carry provisions of the 1992 Cable Act. Congress has acted in a highly reasonable and responsible way without trampling the constitutional rights of this nation’s citizens. I write separately to emphasize that, because any burden imposed by the 1992 Cable Act on speech is so remote and incidental to the purpose and effect of the 1992 Cable Act, I do not find that the must-carry provisions of the Cable Act of 1992 implicate the First Amendment to the extent to which Plaintiffs claim.
For many years, Congressional policy regarding the telecommunications industry has had a consistent goal: To foster public access to a diverse array of information and views. Congress has found that, to a significant degree because of federal and local governmental decisions in prior years, the cable industry threatens to achieve monopolistic control over the telecommunications market. Thus, a competitive imbalance between the cable and broadcast industries has developed, threatening this important goal.
Congress’ finding is based on an exhaustive Congressional record, and deserves the Court’s deference. Plaintiffs, under the guise of the First Amendment, would have this Court strike down a statute enacted by Congress in an effort to reign in cable com*52pañíes’ growing economic might and to restore competitive balance in the telecommunications industry. However, this case is not about protecting free speech and the First Amendment. This case is about market domination and control.
I
This case involves two young industries which are essentially less than a half century old. It might be said that invention of television was the first shot fired in the technology revolution, which continues even at this time at an unprecedented pace. From early on, because of the space limitations of the broadcast spectrum, a means had to be devised for allocating stations on a reasonable and fair basis. Congress determined that market forces alone could not make the proper allocation. Thus, right from the start this infant industry was born into a system of heavy regulation.1
The cable industry dates back to 1947, when it first emerged as a satellite system. Cable originated as a device to facilitate transmission of television broadcast signals to remote areas.2 Recognizing the potential of the technology to serve the interests of rural America, Congress began to explore ways to protect and foster the nascent industry.
For several decades, while studying the issue, Congress left regulation of the cable industry to the FCC. In part because of its origin as an adjunct to broadcasting, cable became cloaked in much of the regulatory culture enveloping the broadcast industry.
In the mid-1970s, Congress determined that a number of regulatory and marketplace obstacles had prevented the cable industry from achieving its full potential. To enhance cable’s development as a competitive force in the telecommunications market, Congress enacted several laws to support the growth of the industry.
In 1976 Congress passed legislation granting cable systems’ copyright licenses to retransmit over-the-air broadcast stations. Public Law No. 94-553, Title I, § 101 (1976), codified at 17 U.S.C. § 111. In 1978, in response to cable operators’ claim that utility companies were exacting unreasonable rates for the operators’ use of utility poles and underground conduits, Congress passed legislation authorizing the FCC to resolve pole attachment disputes between the operators and utility companies. Public Law No. 95-234, § 6 (1978), codified as amended at 47 U.S.C. § 224. Through the pole attachment legislation, Congress sought “to minimize the effect of unjust or unreasonable pole attachment practices on the wider development of cable television service to the public.”3
Meanwhile, since cable often required use of local telephone lines, state and municipal authorities developed local franchise and license systems further regulating cable in their respective markets. Thus, in some *53ways, regulation of the cable industry was even more pervasive than that of the broadcast industry in general, often to the detriment of both the industry and its subscribers.
Perceiving a need to establish a national policy for cable television, Congress passed the Cable Communications Policy Act of 1984. Consistent with Congress’ long-standing policy regarding the telecommunications market as a whole, the 1984 Act aimed to “promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems.” Public Law No. 98-549, § 2 (1984), codified at 47 U.S.C. § 521(6).
The 1984 Cable Act contained several provisions to support cable’s competitive position. With regard to local franchising authorities, the Act (1) restricted their ability to regulate rates, allowing them to do so only where there was a lack of effective competition, to be defined by the FCC, (2) limited the obligations they could impose on cable companies and (3) limited their authority to deny renewal of cable franchises.
At the same time, Congress took steps to assure that cable would contribute to the diversity of information available to the public. To thwart the development of local media monopolies and to encourage diversity of ownership of communications outlets, the 1984 Act prohibited ownership of a cable company by the owner of a television broadcast license or telephone company. And to foster a broad diversity of information sources, the Act permitted cities to continue to require in cable franchises that certain cable channel capacity be devoted to public, educational and governmental channels.
As a result of technological innovation and creativity and supported by federal legislation, the cable industry has come a long way in its less than 50 years’ existence. Indeed, there is little resemblance between the cable industry of 1947 and that of today. Cable has expanded television communications beyond the wildest imagination of its discoverers. It has virtually eliminated the original problems caused by the space limitation of the broadcast spectrum. Instead of providing access to television broadcasting as its main objective, through creativity and vision, cable now has a free standing existence. It has developed from being the dog’s tail to being the tail that wags the dog.
Although cable has brought about much good, there have been excesses which, over the years, Congress has felt compelled to alleviate. In particular, Congress has found that certain anticompetitive, monopolistic behavior on the part of cable companies has accompanied their success, behavior which threatens the vitality of broadcast programming and, therefore, the public interest in access to a wide range of information and views.4 Thus, while cable has virtually eliminated the problems caused by scarcity on the broadcast spectrum, it has created another scarcity — namely access to the channels on cable systems themselves.
In finding that the must-carry provisions of the Cable Act do not violate the First Amendment, several points merit special emphasis. First, local and federal government regulation played an important role in allowing cable to achieve the position it has today. In addition to the support provided by federal legislation in the 1970s and by the Cable Act of 1984, all too often local franchising authorities granted cable companies an exclusive franchise in their local market.
Second, cable companies enjoying such de facto monopolies wield enormous power over programming in the telecommunications market as a whole. Cable operators can require programmers to provide the operator exclusive carriage rights or a financial interest in the programming as a condition of carriage, and some have done so. The substantial negative impact such conditions have on broadcast stations and television distributors is clear.
Third, as an increasing proportion of the public subscribed to cable (now 60% of American households owning a television set), broadcast stations have become increasingly dependant on cable to reach their television audiences. As cable has become the primary *54means for transmission of all broadcast signals in a locality, it has become imperative for broadcasters to obtain retransmission of their signals by the local cable company. Otherwise, the broadcaster will face a greatly diminished audience. Since it is often the case that cable and broadcast companies are in direct competition for advertising revenues, cable companies have a powerful means by which to adversely affect the financial interests of broadcast stations by refusing to carry or even terminating its broadcast clients.
Congress specifically found that broadcast stations, by being part of the local community, continue to be an important source of local news, public and educational programming and other services critical to an informed electorate. The cable industry's growing monopolistic hold on the telecommunications industry, Congress reasoned, threatens the viability of its only current competition — local broadcasters. Congress concluded that, should local broadcasters be forced off the air, the public interest in being able to obtain access to a broad selection of local news and public and educational programming would be endangered.
II
Sections 4 and 5 of the Cable Act of 1992 are a form of regulation, designed to lessen the monopolistic threat posed by cable to the telecommunications industry. Contrary to the arguments of. Plaintiffs that the 1992 Act limits First Amendment rights on its face, the Act’s objective is to enhance the diversity of television voices protected by the First Amendment by neutralizing the adverse effects of cable companies’ monopolistic behavior and securing the position of broadcasters’ programs. As an interim measure to accomplish this end, “must-carry” is an integral part of the solution to the problems identified by Congress.5
Plaintiffs have come before this Court, not because their freedom of speech is seriously threatened, but because their profits are; to dress up their complaint in First Amendment garb demeans the principles for which the First Amendment stands and the protections it was designed to afford. To the extent to which the First Amendment is implicated, I agree with Judge Jackson that the minimal level of scrutiny outlined in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 is the standard the Court should apply.
Plaintiffs raise two arguments in support of their claim. First, the cable operators argue that the must-carry provisions are content-based restrictions compelling them to carry the speech of broadcast stations, and as such run afoul of the First Amendment. Second, the cable programmers argue that the must-carry provisions unfairly prefer the “speech” of broadcasters over their First Amendment rights. Both of these arguments fail.
A. Operators’ Claim
It is well-established that under the protections afforded by the First Amendment individuals enjoy the right to speak or not to speak. The government cannot compel an individual to speak. See, e.g., Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). The Supreme Court has extended this principle to apply to newspapers and to privately-owned newsletters in *55Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) and Pacific Gas & Elec. v. P.U.C. of California, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986), respectively.
While the plaintiffs would have the Court extend the coverage of Tomillo and Pacific Gas & Elec, to the case at bar, these cases are inapposite to the arguments raised by Plaintiffs.
Tomillo broadly recognized the free speech rights of newspapers. Tomillo involved state action which penalized identifiable content-based speech and compelled transmission of a particular message. In that case, the Supreme Court once again made it clear that a statute which infringes on a newspaper’s editorial rights is highly suspect under the First Amendment.
A continuum exists between compelled speech which is content based and that which incidentally relates to speech. While conflicting signals can be discerned from the case law on when regulations of business enterprises are content-based and when they are not, some First Amendment challenges lend themselves to the following maxim: You know it when you don’t see it. This is such a case.
“Content-neutral” regulations are those that “are justified without reference to the content of the regulated speech.” City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986). In Renton, the Court found that a city zoning ordinance restricting the location of adult theaters was not aimed at the content, but rather at the secondary effects such theaters had on the surrounding community.
Perhaps more similar to the case at bar is Regan v. Taxation with Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). In that case, the Supreme Court found § 501(e)(3) of the Internal Revenue Code, which grants tax-exempt status to organizations organized and operated exclusively for certain statutorily-prescribed purposes, is constitutional. Like must-carry’s distinction between cable programmers and broadcasters, § 501(c)(3) clearly makes a statutory distinction between different groups of speakers. Finding “no indication that the statute was intended to suppress any ideas”, the Court found that § 501(e)(3) is not a content-based restriction on speech.6
Like the ordinance in Renton and the statute in Regan v. Taxation With Representation, the must-carry provisions' plainly “are justified without reference to the content of the regulated speech” and there is “no indication that the statute was intended to suppress any ideas[.]” Must carry simply does not constitute a content-based restriction on cable operators’ speech.
The right-of-reply statute in Tomillo and the California Public Utilities Commission’s directive in Pacific Gas & Elec, plainly were based on the content of the regulated speech. But unlike the governmental actions involved in Tomillo and Pacific Gas & Electric, the must-carry provisions of the Cable Act of 1992 neither “penaliz[e] the expression of particular points of view [nor] foree[ ] speakers to alter their speech to conform to an agenda which they do not set.” Pacific Gas & Elec., 475 U.S. at 9, 106 S.Ct. at 908. The must-carry provisions do not “restrict [Plaintiffs’] speech to certain topics or views or [ ] force [them] to respond to views that others may hold.” Id., at 11, 106 S.Ct. at 909. Must-carry will not “impermissibly require [Plaintiffs] to associate with speech with which [they] may disagree” nor make them “feel compelled to respond to arguments and allegations made by [a local broadcaster] in its messages to [Plaintiffs’] customers.” Id., at 15-16, 106 S.Ct. at 911.
Cable operators are left with ample channels to disseminate their own views, and there is nothing about sections 4 and 5 of the 1992 Cable Act which might cause a cable operator to “conclude that, under these circumstances, the safe course is to avoid controversy, thereby reducing the free flow of *56information and ideas.” Id., at 14, 106 S.Ct. at 910 (citation omitted). Finally, “if experience with [the must-carry provisions] indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 393, 89 S.Ct. 1794, 1808, 23 L.Ed,2d 371 (1969).
Plaintiffs argue that the prohibition outlined in Tomillo and Pacific Gas & Elec. against governmental intrusion into the province of editorial discretion provides an independent basis leading the Court to apply strict First Amendment scrutiny to this case. In those eases, the clear content-triggered operation of the governmental regulation threatened to alter the mix of information chosen by the newspaper or newsletter at issue. Since neither a newspaper nor a newsletter is “a passive receptacle or conduit for news, comment, and advertising”, Tornillo, 418 U.S. at 258, 94 S.Ct. at 2840, such interference with the editor’s function triggered heightened scrutiny.
While cable operators do exercise some control and judgment about the mix of overall programming they provide, such judgment does not entail the detail-oriented, content-based decisions made by the editors of newsletters, newspapers or other published sources of information. If the Cable Act compelled the cable programmers to carry the broadcasters’ speech, or compelled the ■ operators to relay a particular message, the Act undoubtably would run afoul of the First Amendment. But that is not what is presented in this case. Requiring cable operators to carry the programs of broadcasters, whatever the content of those programs may be, simply does not rise to the level of interference with editorial discretion which impinges on free speech or threatens to alter the mix of information available to the public.
B. Programmers’ Claim
Plaintiff programmers challenge the must-carry provisions as impermissibly favoring the speech of broadcaster stations over that of cable programmers.
“Generally, statutory classifications are valid if they bear a rational relation to a legitimate governmental purpose. Statutes are subject to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech, or employ a suspect classification.” Regan v. Taxation With Representation, 461 U.S. at 547, 103 S.Ct. at 2001-2002. Programmers and broadcasters clearly are not constitutionally protected groups. And, having found that must-carry does not violate the First Amendment, heightened scrutiny is not warranted in this case.7 Since I agree with Judge Jackson that the 1992 Cable Act passes muster under the rational relations standard of review, this argument fails.
Finally, it must be pointed out that the only challenge before this Court is provided under the First Amendment. No challenge has been made under the taking provision of the Fifth Amendment or any other legal provision. Upholding the 1992 Act against Plaintiffs First Amendment challenge should in no way be taken as an endorsement of the legislation. Indeed, it may be preferable that the market be permitted to regulate itself. Of course, even the most avid proponents of free competition recognize that there cannot be effective free market competition without first eliminating the natural and not so natural monopolies that too many cable companies now enjoy.
Ill
Plaintiffs’ attempt to substitute Congress’ regulation of the cable industry with regulation by the First Amendment is mischievous. It is inconceivable that our forefathers at any time contemplated that the First Amendment would be used to regulate an industry that came into existence over 150 years after the Bill of Rights was adopted.
*57Here, the Government has stepped aside to allow the private sector to perform signal transmission and allocation functions that the Government itself could have reserved for itself, without facing any conceivable First Amendment challenge by broadcasters or other programmers because of the regulatory method chosen. To the extent to which cable is performing a “public utility” function which the Government itself could perform, Congress certainly has the right to adopt reasonable regulations.
Congress has determined that cable companies’ growing anti-competitive behavior and monopolistic power threatens the broadcast industry and the public’s access to a wide array of local, public and educational programming. Congress decided to address this danger by enacting the Cable Act of 1992. In so doing, Congress was not motivated by a desire to stifle the speech of cable operators or programmers — indeed, ample channels remain open for their use — but by a desire to alleviate the effects of cable companies’ monopolies and to preserve the diversity of voices represented by local, public and educational broadcasters. Whether there were other preferable ways of accomplishing Congress’ objective is not for the Court to decide. So long as the method adopted by Congress is an appropriate one, it must stand and may not be second guessed by the judiciary. Consequently, I find that the Cable Act of 1992 does not run afoul of the First Amendment.
. The FCC, created in 1934, became the principal vehicle for overseeing the television industry. That agency was given jurisdiction to allocate space on the broadcast band by awarding licenses to those desiring to become broadcasters. These were highly lucrative licenses, which in effect were being given away by the government. Here in this nation of free markets we had a paradox of sorts, namely a mix of government regulation and private enterprise, being dictated by the scarcity of a much sought-after commodity that would confer rights on those selected to receive a "free” Government license to broadcast.
. John Walson, Sr., is credited as being the founder of cable television. Mr. Walson recently passed away. In his obituary, the following is recounted:
In 1947, Mr. Walson was the owner of an appliance store in Mahanoy City, near Allentown, when he discovered he had trouble selling televisions because the mountains of eastern Pennsylvania interfered with reception.
He erected an antenna tower atop New Boston Mountain overlooking Mahanoy City and ran wire to television sets in his store window. He added amplifiers to the system the next spring, then persuaded residents to hook up for a $100 installation fee and $2 a month.
His company, called Service Electric Cable TV, now has more than 400 employees and serves subscribers in eastern and central Pennsylvania and northwestern New Jersey.
Mr. Walson made cable television history again in 1972, when his company became the first to offer the cable channel Home Box Office to customers. HBO recently presented him with an award recognizing that distinction.
.S.Rep. No. 580, 95th Cong., 1st Sess. • 14 (1977), reprinted in 1978 U.S.C.C.A.N. 109, 122.
. See Judge Jackson’s Opinion, supra, for a discussion of the Congressional findings in this regard and the voluminous record supporting them.
. At some point, technological innovation will enable cable systems to accommodate all broadcasters requesting carriage, thereby rendering "must carry” a problem of the past. Indeed, according to a April 6, 1993 article in the Washington Post, Telecommunication's Inc., the nation’s largest cable television company, is about to "unveil an ambitious plan to rewire many of its cable systems, with 7,000 miles of high-capacity, fiber-optic lines” over the next four years, which eventually will "enable TCI to deliver hundreds of TV channels [and] ‘video-on-demand’ programming” to its subscribers.
However, while fiber-optic and other technological innovations may be on the verge of a break through which may well cast a different light on Plaintiffs' First Amendment claims, such innovations have not yet realized their potential in the marketplace. In the context of today's technological landscape, the Cable Act of 1992 must be viewed as regulation designed to alleviate the adverse impact of the cable industries' growing monopolistic hold over the telecommunications industry.
. Section 501(c)(3) grants tax-exempt status to organizations "organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition ..., or for the prevention of cruelty to animals[,]” provided that no substantial part of the activities of which consists attempting to influence legislation or supporting political candidates. 26 U.S.C. § 501(c)(3).
. Moreover, a requirement that cable operators carry broadcast programming cannot be said to compel speech on the part of cable programmers. Thus, even if the First Amendment was implicated in this case, it is not clear that the programmers would have standing to assert this claim.