F.C.C. v. Beach Communications (92-603), 508 U.S. 307 (1993).
[ Thomas ]
[ Stevens ]
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No. 92-603


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.

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 withinthe 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, [n.1] or by the Court's "monopoly" rationale, see ante, at 12, [n.2] I agree with its ultimate conclusion. In my judgment, it is reasonable to presume [n.3] that Congress was motivated byan 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.


1 Approximately 25% of all multiple dwellings units are in complexes large enough to support an SMATV system. See C. Ferris, Cable Television Law: A Video Communications Practice Guide, 21.02, p. 21-3, n. 2 (1983). Furthermore, whereas the FCC had, prior to enactment to the Cable Communications Policy Act of 1984 (Cable Act), 98 Stat. 2779, exempted from regulation cable systems of less than 50 subscribers as well as those serving commonly owned multiple unit dwellings, Congress exempted only the latter when it passed the Cable Act, leaving out the exemption based on system size. Respondent thus makes a strong argument that Congress may have rejected the very rationale upon which the FCC, and the Court, rely.

2 The Court's theory assumes a great deal about the nature of what is essentially a hypothetical market. Moreover, the Court's analysis overlooks the competitive presence of traditional cable as a potential constraint on an SMATV operator's capacity to extract monopoly rents from landlords.

3 The Court states that a legislative classification must be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification," and that "[w]here there are `plausible reasons' for Congress' action, `our inquiry is at an end,' " ante, at 6. In my view, this formulation sweeps too broadly, for it is difficult to imagine a legislative classification that could not be supported by a "reasonably conceivable state of facts." Judicial review under the "conceivable set of facts" test is tantamount to no review at all.

I continue to believe that when Congress imposes a burden on one group, but leaves unaffected another that is similarly, though not identically, situated, "the Constitution requires something more than merely a `conceivable' or `plausible' explanation for the unequal treatment." United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980) (Stevens, J., concurring in judgment). In my view, when theactual rationale for the legislative classification is unclear, we should inquire whether the classification is rationally related to "a legitimate purpose that we may reasonably presume to have motivated an impartial legislature." Id., at 181 (emphasis added).