322
Stevens, J., concurring in judgment
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 317-318,1 or by the Court's "monopoly" rationale, see ante, at 319-320,2 I agree with its
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. Respondents thus make 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.
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