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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-603
- --------
- FEDERAL COMMUNICATIONS COMMISSION AND
- UNITED STATES, PETITIONERS v. BEACH
- COMMUNICATIONS, INC., et al.
- on writ of certiorari to the united states court
- of appeals for district of columbia circuit
- [June 1, 1993]
-
- Justice Stevens, concurring in the judgment.
- Freedom is a blessing. Regulation is sometimes neces-
- sary, but it is always burdensome. A decision not to
- regulate the way in which an owner chooses to enjoy the
- benefits of an improvement to his own property is ade-
- quately justified by a presumption in favor of freedom.
- If the owner of a large building decides to improve it
- by installing his own electric generator, or by placing a
- windmill on the roof, government might well decide to
- regulate his use of that improvement. But if government
- permits the installation, it can surely allow the owner to
- use the electricity that it generates for whichever appli-
- ances on the property that he selects. However, if the
- owner elects to sell electricity to his neighbors, a justifica-
- tion for regulation that did not previously exist might
- arise. For he would be seeking access to an already
- regulated market.
- A television antenna, like a windmill, is a somewhat
- unsightly species of improvement. Nonetheless, the same
- analysis applies. Government may reasonably decide to
- regulate the distribution of electricity or television pro-
- grams to paying customers in the open market without
- also regulating the way in which the owner of the an-
- tenna, or the windmill, distributes their benefits within
- the confines of his own property. In my opinion the in-
- terest in the free use of one's own property provides ade-
- quate support for an exception from burdensome regula-
- tion and franchising requirements even when the property
- is occupied not only by family members and guests, but
- by lessees and co-owners as well, and even when the
- property complex encompasses multiple buildings.
- The master antenna serving multiple units in an
- apartment building is less unsightly than a forest of
- individual antennas, each serving a separate apartment.
- It was surely sensible to allow owners to make use of
- such an improvement without incurring the costs of
- franchising and economic regulation. Even though regula-
- tion might have been justified-indeed, the Federal
- Communications Commission (FCC) at one time considered
- imposing such regulation, see Cable Television Systems,
- 63 F. C. C. 2d 956, 996-998 (1977)-a justification for
- nonregulation would nevertheless remain: Whenever
- possible, property owners should be free to use improve-
- ments to their property as they see fit.
- That brings us to the -private cable- exemption as
- applied to Satellite Master Antenna Television (SMATV)
- systems. A justification for the -private cable- exemption
- that rests on the presumption that an owner of property
- should be allowed to use an improvement on his own
- property as he sees fit unless there is a sufficient public
- interest in denying him that right simply does not apply
- to the situation in which the improvement-here, the
- satellite antenna-is being used to distribute signals to
- subscribers on other people's property. In that situation,
- the property owner, or the SMATV operator, has reached
- out beyond the property line and is seeking to employ the
- satellite antenna in the broader market for television
- programming. While the crossing of that line need not
- trigger regulatory intervention, and the absence of such
- a crossing may not prevent such intervention, it certainly
- cannot be said that government is disabled, by the Consti-
- tution, from regulating in the case of the former and
- abstaining in the case of the latter. Such a policy is
- adequately justified by the presumption in favor of
- freedom.
- Thus, while I am not fully persuaded that the -private
- cable- exemption is justified by the size of the market
- which it encompasses, see ante, at 9-11, or by the
- Court's -monopoly- rationale, see ante, at 12, I agree
- with its ultimate conclusion. In my judgment, it is
- reasonable to presume that Congress was motivated by
- an interest in allowing property owners to exercise free-
- dom in the use of their own property. Legislation so
- motivated surely does not violate the sovereign's duty to
- govern impartially. See Hampton v. Mow Sun Wong, 426
- U. S. 88, 100 (1976). Accordingly, I concur in the judg-
- ment of the Court.
-