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Background 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" 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 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" (Dale A. Herbeck & Thomas L. Tedford, 4th Edition, State College, PA, Strata Publishing, Inc. 2001). (http://web.archive.org/web/20060220190217/http://www.bc.edu/free_speech/) Notes: On Monday, October 7, 1996 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. It is also worth noting this was the first case argued in the fall 1996 term, and the first case heard by Justice Stephen Breyer, who had replaced Justice Harry Blackmun. Tom Meek is available to lecture concerning the Turner case and the history of must-carry, how the case was won, and its importance in determining the relationship between the broadcasting and cable industries that continues to resonate more than a decade after the decision was released in April, 1997. 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.
Additional Resources Oyez U.S Supreme Court Media including audio of oral arguments before the U.S. Supreme Court, the majority, minority and concurring opinions, an abstract, and transcript of the oral arguments.
Each Opinion may be viewed or downloaded separately.
National Public Radio "All Things Considered" Report On The Turner Decision From March 31, 1997 (Real Audio)
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.htm
"The Real Story Behind Must-Carry", Multi-Channel News article from 2004 detailing the debates in the Supreme Court over the Turner case, using the papers of Justice Harry Blackmun and other sources. By Ted Hearn.
Court TV Library - 1995 2-1 Majority decision by Judge Stanley Sporkin of the United States District Court For The District Of Columbia affirming the "must-carry" rules.
(TVCCS historical note - "Turner" was the very first case heard by Justice Breyer after replacing Justice 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-trust issues, it was widely held that Breyer would likely not vote to affirm must-carry).
Oyez U.S Supreme Court Media - Turner Broadcasting vs. FCC (1994) The original 5-4 decision to remand the must-carry rules back to the United States District Court For The District Of Columbia for further consideration. Includes audio of Oral Argument and Opinion Anouncement, and written opinions.
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://web.archive.org/web/20060220190217/http://laws.findlaw.com/us/000/u10351.html - 1993 decision
Cardozo Law Review - Must-Carry Rules In The Transition To Digital Television: A Delicate Constitutional Balance
Cardozo Law Review Article
"Vertical integration and local station carriage in the cable television industry: Results from Logit analysis" by Michael Zhaoxu Yan, Department of Communication Studies, University of Michigan, Ann Arbor, 2003. TVCCS Note: This paper attempted to make the case that vertical integration did not have an effect on carriage decisions, and attempted to present broad ratings data that independent and religious stations did not have the same audience shares as cable program services. A similar and far more specific controlled analysis using actual Nielsen data from ten selected local TV markets was presented to the Court in Turner by TVCCS, and clearly showed just the opposite, that even the smallest indendent and religious broadcast stations held higher audience shares in cable households than all but the largest cable programming services, as long as those local stations were able to gain carriage. Because of protective orders required by Nielsen to present data to the Court, much of the material developed and presented to the Court in Turner was seen by only a few attorneys at Jenner & Block and selected additional experts, with even counsel for the main broadcast trade organizations and the Department Of Justice usually receiving heavily redacted copies of the work submitted to the Court by TVCCS. |
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