## Facts

- Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act) and amended earlier cable statutes to respond to cable operators’ market power, limited consumer choice, and concerns about access to video programming.
- The 1992 Cable Act and related provisions directed the Federal Communications Commission (FCC) to implement a wide range of cable and multichannel video programming distributor regulations, including rate-related rules, access and capacity rules, and restrictions addressing vertical integration and exclusivity in programming markets.
- One challenged set of provisions addressed direct broadcast satellite (DBS) service, requiring DBS providers to reserve a portion of channel capacity for noncommercial educational programming, and directing the FCC to adopt rules to carry out that reservation requirement.
- Time Warner Entertainment Co., L.P. (Time Warner), a major participant in the cable and programming markets, brought constitutional and administrative challenges to multiple statutory provisions and FCC rules, including the DBS educational-capacity set-aside and other regulations affecting carriage and programming practices.
- The litigation reached the U.S. Court of Appeals for the District of Columbia Circuit through a combined posture: (1) appeals from decisions of the U.S. District Court for the District of Columbia addressing constitutional challenges, and (2) petitions for review of FCC rulemakings adopted under the 1992 Cable Act.
- The D.C. Circuit considered the challenges against the backdrop of Supreme Court precedent recognizing that cable operators engage in protected speech, while allowing content-neutral regulation of cable systems when justified by sufficiently weighty governmental interests.

## Issues

1. Whether the 1992 Cable Act and FCC rules imposing capacity set-asides and access obligations (including the DBS educational set-aside) violate the First Amendment by burdening editorial discretion or compelling carriage.
2. Whether the challenged cable regulatory provisions and implementing rules should be treated as content-neutral and evaluated under intermediate scrutiny rather than strict scrutiny.
3. Whether Congress and the FCC adequately justified the challenged regulatory scheme (including economic and access-related rules) with substantial governmental interests and an appropriately limited burden on speech.
4. Whether challenges to certain statutory “program creation” or not-yet-finalized FCC implementation measures were fit for judicial review, or instead were unripe.

## Decision

- The court treated most of the challenged provisions and rules as content-neutral regulation of the video marketplace and evaluated them under intermediate scrutiny.
- The court largely upheld the 1992 Cable Act’s regulatory framework and the FCC’s implementing rules against First Amendment challenge, crediting governmental interests such as limiting anticompetitive conduct and increasing opportunities for additional speakers to reach viewers.
- As to DBS, the court upheld the noncommercial educational capacity set-aside requirement and the FCC’s related implementation as a permissible access-type obligation under the applicable level of scrutiny.
- The court declined to reach the merits of certain challenges tied to program-creation or insufficiently final implementation features (including aspects associated with § 11(c)), concluding that those claims were not ripe and directing that they proceed, if at all, in later litigation once concrete rules were in place.
- In the combined appeals and petitions for review, the court affirmed and denied relief on most claims, while granting limited relief only to the extent necessary to reflect ripeness limits and any discrete statutory or regulatory defects identified in the opinion.

## Legal Principles

- Cable operators and other multichannel video distributors engage in protected speech, but not all regulation affecting them triggers strict scrutiny.
- Content-neutral regulation that targets market structure, access, or economic power—rather than particular viewpoints or subject matter—generally is reviewed under intermediate scrutiny.
- Under intermediate scrutiny, the government must show an important or substantial interest and a reasonable fit between that interest and the regulatory burden; the regulation may not burden substantially more speech than necessary.
- Capacity set-asides and access requirements, including reservations for noncommercial educational programming, can be constitutional when justified as access measures and when the burden on an operator’s speech is limited in scope.
- Courts will dismiss or postpone review of constitutional and statutory challenges that depend on uncertain future applications, applying ripeness principles when agency implementation is incomplete or not sufficiently concrete.
- In reviewing FCC rulemakings, courts consider the agency’s statutory authority and the administrative record, while giving appropriate deference to expert judgments within the bounds of the statute and the Constitution.

## Conclusion

Time Warner Entertainment Co. v. FCC upheld most challenged provisions of the 1992 Cable Act and the FCC’s implementing rules under intermediate scrutiny, including the DBS noncommercial educational set-aside, while refusing to decide certain program-creation-related challenges that were not yet fit for review because the regulatory scheme had not been implemented in a concrete, final manner.


Time Warner Entertainment Co. v. Federal Communications Commission, 93 F.3d 957 (1996)