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 necessary, 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 adequately 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 appliances on the property that he selects. However, if the owner elects to sell electricity to his neighbors, a justification 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 programs to paying customers in the open market without also regulating the way in which the owner of the antenna, or the windmill, distributes their benefits within the confines of his own property. In my opinion the interest in the free use of one's own property provides adequate support for an exception from burdensome regulation 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 regulation 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 improvements 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 Constitution, 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 freedom 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 judgment of the Court.