C-Span Video Archive - Cable Act Of 1992 Senate Floor Debate
Turner Broadcasting vs. Federal Communications Commission
April, 4, 1997
I am pleased that your work was cited so frequently by the majority of the Supreme Court in our "must-carry" victory. The importance of your work to that opinion is an accurate reflection of the importance of your work in the entire effort. From the beginning, you played a major role in focusing our attention on the kinds of empirical evidence that could, and should, be developed, and did an excellent job in implementing that rather complicated effort.
In view of the very slender margin of our victory, I think it can be fairly said that all of the lawyers and experts who worked on the case contributed significantly to the ultimate victory, but your efforts, in particular, deserve special commendation.
Thanks again for all of your help. I hope we have opportunities to work together again in the future.
Bruce J. Ennis
Jenner & Block
"...Congratulations, I read the decision...I've never seen one expert cited so many times in a Supreme Court Opinion - Laurence Tribe would be envious..."
Charles J. Sennet, Senior Counsel
The Tribune Company
As the lead expert for the U.S. Department of Justice (DOJ), Federal Communications Commission (FCC), National Association of Broadcasters (NAB), Association of Local Television Stations (ALTV), Public Broadcasting System (PBS), and Association of Public Television Station (APTS), TVCCS produced the majority of the critical factual evidence cited by the United States Supreme Court in the 5-4 decision upholding the "must-carry" and retransmission consent rules for broadcast television stations in Turner Broadcasting System, Inc. et al v. Federal Communications Commission et al., (95-992), 520 U.S.180 (1997).
TVCCS produced over 100,000 pages of original research for the case, and presented more than 7,000 pages of expert reports, affidavits and exhibits for submission. The research and findings of fact generated by TVCCS also served as the foundation of much of the additional expert testimony submitted in the case.
The Turner case was the first time in U.S. courts television ratings and related information supplied by Nielsen Media Research was allowed by Nielsen, and extensive data was generated on 15 major market metered television ratings, comparing ratings of broadcast and cable services in those markets. Custom Nielsen cable data was also used to track cable carriage changes on every U.S. cable system over a two-year period, consisting of thousands of pages of data. This Nielsen cable data was crucial in verifying the accuracy of claims of injury by the plaintiffs, ultimately causing more than 90% of said claims to be dismissed.
In addition, a separate copyright and cable data base was utilized in various ways to produce a comprehensive analysis of the carriage of every broadcast station on every cable system in the U.S. over a ten-year period, measured at six-month intervals. This data was analyzed for a variety of trends and indicators, and presented to indicate historical changes in broadcast carriage for various station classes based on changes in the must-carry rules.
Both databases were used to generate, for the first time ever, an overall picture of cable carriage in the United States, both in terms of the total number of available cable channels nationwide, as well as those devoted to carriage of broadcast stations of various types, and those devoted to new must-carry stations. This data was analyzed extensively to create a "universe" of cable carriage, and eventually became the base from which both the broadcast/government side and the cable industry had to make their cases as part of the facts held not in dispute.
Additional research and analysis was provided on the historical aspects of cable "clustering" and its effect on advertising markets and carriage decisions. An extended list of closed TV stations and stations affected by carriage denials was also generated. Extensive evidence was also generated on carriage denial practices by a variety of MSO's in the wake of the re-implementation of the must-carry rules. There was also extensive evidence constructed concerning the carriage of new television stations, compiled along a time-line basis.
Tom Meek also provided a 700-plus page deposition over two days that became a significant part of the record for the case. He worked closely with a dozens of attorneys and experts on the case from a wide variety of government and business in conjunction with Jenner & Block, of whom the late Bruce Ennis (see bio) helped argue the case before the Supreme Court. The Turner case has gone on to be cited repeatedly since its release, and is now seen by many as a "landmark" case in constitutional law and free speech, including "Freedom Of Speech In The United States", by Dale A. Herbeck & Thomas L. Tedford, 8th Edition, State College, PA, Strata Publishing, Inc. 2017.
Note: Certain key information presented in the Oral Arguments of the final Turner case were misunderstood by The Court and incorrectly represented during the Oral Arguments, and subsequently in various media, including The New York Times. At the request and submission of Tom Meek, The New York Times printed a letter on Monday, October 14 , 1996, correcting key errors presented as part of the oral argument.
The following links and documents are related to a variety of audio, Internet and written resources, and are available to educators, students and other interested parties concerning the Turner decisions, history of must-carry and related issues, especially for college and graduate-level courses dealing with the Turner case.
Tom Meek invites educators and students to contact him for further information regarding the Turner cases and history of must-carry, and makes presentations and lectures nationwide on the case, its background, and significance going forward in the areas of cable regulation, communications law and the First Amendment.
Related Links & Additional Information
Justice Anthony Kennedy's majority opinion (PDF)
Justice Kennedy's opinion (PDF) - emphasis added for direct citations and additional contributions by Tom Meek
Justice Kennedy's opinion in text (.txt) format
Oyez Supreme Court Site
"Turner Broadcasting System, Inc. v. Federal Communications Commission." Oyez, 4 Oct. 2017, www.oyez.org/cases/1996/95-992 - Including Decision - Opinions - Syllabus - Case + Oral Arguments (audio) and transcript as presented on October 7, 1996.
Cornell University Law School Legal Information Institute
Text of Turner Decision & Opinions (1997) in both HTML and Word Perfect Format. Each Opinion may be viewed or downloaded separately.
First Amendment Center Supreme Court Files (Archived) - 1997 Turner Decision
A report on the oral arguments at the court, which opined "Judging by the questioning from the justices, the rules are in serious jeopardy of being overturned."
First Amendment Center story on October 1996 Oral Arguments - originally from http://www.fac.org/fac/96-97/tur_oral.htm
First Amendment Center Summary on April 1997 Decision - originally from http://www.fac.org/fac/96-97/tur_sum.htm
Turner decisions from Supreme Court Archives (PDF)
Turner II (1997) http://www.supremecourtus.gov/opinions/boundvolumes/520bv.pdf#page=275
Turner 1 (1994) http://www.supremecourtus.gov/opinions/boundvolumes/512bv.pdf#page=670
The New York Times
Report on Turner final decision (04-01-1997)
Report on Supreme Court agreeing to hear the final Turner case (02-21-1996) (PDF) - Originally retrieved from from the College Of William & Mary Law School Scholarship Repository
Report on Supreme Court agreeing to hear the original Turner Case (09-28-1993)
Report on Congressional override of President George Bush's veto of the Cable Act of 1992
The Washington Post
The Washington Post report on the Turner Decision - "High Court Upholds Law Aiding Broadcasters" (04/01/97)
AP - Associated Press
Via The Dubuque Telegraph Herald - AP Associated Press report on the Turner Must-Carry decision (04/01/97).
Via the Los Angeles Times - AP Associated Press report on the Quincy decision originally striking down the must-carry rules in 1986.
The Freedom Forum First Amendment Center at Vanderbilt University - First Amendment Legal Watch from the Legal Department - Vol. II No. 14
A summary and opinion on the Turner decision from a First Amendment viewpoint.
http://www.fac.org/legal/fawatch/VOL2NO14.htm - retrieved via the Internet Wayback Machine
Supreme Court Web Watch - W.W. Norton Publishers
Provides a summary of the 1997 Turner decision in conjunction with the book "Supreme Court Watch and Constitutional Law and Politics Third Edition" - Turner Broadcasting v_ FCC II - Retrieved from the Internet Wayback Machine
Brandford A. Bleier, Bleier Law Firm - Summary and opinion on the 1997 Turner Decision.
Bleier Law Firm Newsletter Article - Supreme Court's Must Carry Decision.htm - Retrieved from the Intenet Wayback Machine
C-SPAN Citizens Clips - This long-gone website often presented viewpoints that must-carry was responsible for many of C-SPAN's distribution ills. A sample of the content from the site is referenced here. The second of these postings discusses a major problem for C-SPAN, the effect of vertical integration within the cable industry, a finding the Court eventually sided with in the Turner decision.
C-SPAN Citizens Clips 1 - Retrieved from the Internet Wayback Machine
C-SPAN Citizens Clips 2 - Retrieved from the Internet Wayback Machine
On a related note, here's a sample of how NAB has used the research developed in the Turner case on an ongoing basis concerning C-SPAN (PDF) - Originally published at http://www.nab.org/newsroom/issues/mustcarry/EOF to Lamb.html - Retrieved from the Internet Wayback Machine
Court TV Library
Dec 14, 1995 ruling from the Federal District Court upholding the must-carry rules on remand from the U.S. Supreme Court. The majority opinion was written by Judge Stanley Sporkin. Retrieved from the Internet Wayback Machine
Michigan Telecommunications And Technology Law Review - 1995
Henry Geller writes on the potential implications of the 1994 Turner Decision on the First Amendment and the New Electronic Delivery Systems. Extensive documentation and footnotes of the 1994 Turner decision. Retrieved from the Internet Wayback Machine
Peter W. Huber, from Forbes Magazine, August 29, 1994, Page 94 - "Must-Carry and The Bill of Rights". Retrieved from the Internet Wayback Machine
The lawyer and writer speculates on the impending death of must-carry after the 1994 Turner Decision. In particular, note his (widespread) expectation that the new Justice Stephen Breyer would join the dissent and overturn must-carry.
(TVCCS historical note - "Turner" was the very first case heard by Justice Stephen Breyer after replacing Justice Harry Blackmun, who was one of only two strong affirmative votes for the defendants in the 1994 decision. Because of Justice Breyer's views on anti-competitive issues, it was widely held that Breyer would not vote to affirm must-carry).
First Amendment Center Supreme Court Files - 1994 Turner Decision
A summary of the original Turner decision remanding the case to the Federal District Court- Retrieved from the Internet Wayback Machine
Findlaw For Legal Professionals - 1993 Turner Injunction Decision
The Turner Plaintiffs requested the Court issue an injunction to enjoin enforcement of certain provisions of the Cable Television Consumer Protection and Competition Act of 1992. Justice Rehnquist denied said request in April, 1993. The decision may be found here, as may the 1994 and 1997 decisions.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=U10351 - 1993 decision
http://caselaw.findlaw.com/us-supreme-court/512/622.html - 1994 decision
http://caselaw.lp.findlaw.com:80/scripts/getcase.pl?court=US&vol=000&invol=95-992 - 1997 decision
The FCC's Rules On Cable Television Service - Title 47 Part 76
The FCC's 1994 Must-Carry Rules 94-251 (MM Docket No. 92-259) (Released 11/4/94)
Campbell Law Review
The Campbell Law Review - Robert B. Hobbs, Jr. 8 Campbell L. Rev. 339 (1986)
An extensive review of the Quincy Cable TV, Inc. v. FCC case before the District Of Columbia Circuit Court of Appeals that led to one of the original sets of must-carry rules being overturned.
First Amendment Center - Satellite Must-Carry
U.S. Supreme Court Cites "Turner" In Refusing To Hear Satellite Carrier Request To Avoid Must-Carry (2002) - Retrieved from the Internet Wayback Machine
Cardozo Law Center
Must-Carry Rules In The Transition To Digital Television: A Delicate Constitutional Balance - Retrieved from the Internet Wayback Machine