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., ]{.smallcaps}

[Appellee]{.smallcaps}

v\.

[United States of America, ]{.smallcaps}

[Appellant]{.smallcaps}

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 Commission, *Daniel M. Armstrong*, Associate General
Counsel, and *James M. Carr*, Counsel. *William E. Kennard*, General
Counsel, and *C. Grey Pash, Jr.*, Counsel, entered appearances.

*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 Filmmakers, National Association of Artists\'
Organizations, National Alliance for Media Arts and Culture, Consumer
ederation of America, National Council of Senior Citizens, and Office of
Communication, Inc. of the United Church of Christ.

Before: [Ginsburg]{.smallcaps}, [Rogers]{.smallcaps} and
[Tatel]{.smallcaps}, *Circuit Judges*.

Opinion for the Court filed by *Circuit Judge* [Ginsburg]{.smallcaps}.

[Ginsburg]{.smallcaps}, *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 constitutionality of two provisions of the
Cable Television Consumer Protection and Competition Act of 1992, Pub.
L. No. 102-385, 106 Stat. 1460 (1992 Cable Act). The \"subscriber limits
provision\" directs the Federal Communications Commission to limit the
number of subscribers a cable operator may reach. 47 U.S.C. §
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*.
§ 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 subscriber limits provision is unconstitutional, *see* 835 F.Supp.
at 10, but the channel occupancy provision is constitutional, *see id*.
at 7 & n.11.[^1] 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 provisions.
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 Turner
Broadcasting System, Inc. v. Federal Communications Comm\'n* (*Turner
I*), 512 U.S. 622, 642 (1994) (Court has applied \"the most exacting
scrutiny to regulations that suppress, 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 determining 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 application of the most exacting level of First Amendment
scrutiny\").

As a cable operator, Time Warner exercises editorial discretion in
selecting the programming it will make available to its subscribers.
Time Warner argues that the congress limited its ability to speak by
restricting the number of subscribers---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.]{.smallcaps} 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.]{.smallcaps} 102-92, at 32 (1991) \[hereinafter [S.
Rep]{.smallcaps}.\]).

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

\... First, there are special concerns about concentration 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
according 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. ]{.smallcaps}at 32-33.

Time Warner contends that the Congress\'s concern that media gatekeepers
would \"slant\" information or fail to provide 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 individuals
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 Amendment 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 Broadcasting Co. v. FCC*, 395 U.S. 367 (1969)).

The expenditure limit at issue in *Buckley*, like the prohibition 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 cable 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 \"biases,\" 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 \"bottleneck 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 concerned 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 information and ideas\"). The must‑carry
obligation and the subscriber limits provision both preserve for
consumers some competition in the provision of programming. The
must‑carry obligation preserves competition between broadcasters and the
cable operator, while the subscriber limits preserve competition between
the cable operator and its affiliated programmers 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
different 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 medium.

In *Turner I*, however, the Court rejected Turner Broadcasting\'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 television; in this case, it arguably
threatens diversity and competition in the provision of cable
programming. As the Government 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 Broadcasting 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
judgments, 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 substantially 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 dominant cable operators might preclude new
programming services from attaining the critical mass audience necessary
to survive. *See* [S. Rep]{.smallcaps}. at 32-33. Time Warner does not
argue that the Congress failed to identify an important governmental
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 expression 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. §§ 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 operators 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 competition, 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 requires 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]{.smallcaps}. 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]{.smallcaps}. 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. § 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*. § 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. § 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]{.smallcaps}. at 32, the Congress reasonably concluded that this
concentration threatened 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 Communications
Comm\'n v. National Citizens Committee for Broadcasting*, 436 U.S. 775,
780 (1978); [Phillip E. Areeda et al.]{.smallcaps}, [Antitrust
Law]{.smallcaps} ¶ 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 administrative complaint
procedure is an adequate alternative to must‑carry obligation:
\"Congress could conclude \... that the considerable expense and delay
inherent in antitrust litigation, and the great disparities in wealth
and sophistication between the average independent broadcast station and
average cable system operator, would make these remedies inadequate
substitutes\"). In sum, Time Warner has not demonstrated 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. § 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 increase the
diversity of voices available to the public. Some \[MSOs\] own many
programming services. It would be unreasonable for them to occupy a
large percentage 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]{.smallcaps}. at 25, 80.

Time Warner argues that because the Congress expressed concern that
cable operators might favor their affiliated programming 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 publisher does not have the ability to
exclude competing publications from its subscribers\' homes. The cable
operator\'s bottleneck 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 programmer 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 information
sources\" to cable subscribers and \"to promote competition 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]{.smallcaps}. 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 provision 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 considerations
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 claiming 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 supported by substantial evidence in the record before
Congress.\" *Turner II*, 520 U.S. at 211. Time Warner argues that the
Congress\'s reason for enacting the channel occupancy provision---to
prevent cable operators from favoring affiliated programmers and
possibly even excluding others---addresses only a speculative harm
because the Congress had no evidence that such exclusionary conduct
actually had occurred. On the contrary, Time Warner contends, a cable
operator has an incentive to contract with unaffiliated programmers 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 competition from DBS and other alternative
providers of video programming.

Nothing in these protestations demonstrates that the Congress\'s
legislative conclusion was either unreasonable or unsupported 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 common ownership. As a result, cable
operators have the incentive and ability to favor their affiliated
programmers. This could make it more difficult for noncable‑affiliated
programmers to secure carriage on cable systems. Vertically integrated
program suppliers also have the incentive and ability to favor their
affiliated cable operators over nonaffiliated cable operators and
programming distributors using other technologies.

47 U.S.C. § 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 Congress 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 limitation is not rendered unnecessary merely
because preexisting statutes impose behavioral norms and *ex post*
remedies. *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*.

[^1]: 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.