228 POWELL, J., dissenting be willing to look beyond the text of a state statute, legislatures would have no incentive to redefine essential elements of an offense to make them part of an affirmative defense, thereby shifting the burden of proof in a manner inconsistent with Winship and Mullaney. Second, it would leave the States free in all other respects to recognize new factors that may mitigate the degree of criminality or punishment, without requiring that they also bear the burden of disproving these defenses. See Patterson v. New York, 432 U. S., at 229-230 (POWELL, J., dissenting) ("New ameliorative affirmative defenses. . . generally remain undisturbed by the holdings in Winship and Mullaney” (footnote omitted)). Under this analysis, it plainly is impermissible to require the accused to prove self-defense. If petitioner could have carried her burden, the result would have been decisively different as to both guilt and punishment. There also is no dispute that self-defense historically is one of the primary justifications for otherwise unlawful conduct. See, e. g., Beard v. United States, 158 U. S. 550, 562 (1895). Thus, while I acknowledge that the two-part test may be difficult to apply at times, it is hard to imagine a more clear-cut application than the one presented here. III In its willingness to defer to the State's legislative definitions of crimes and defenses, the Court apparently has failed to recognize the practical effect of its decision. Martin alleged that she was innocent because she acted in self-defense, a complete justification under Ohio law. See State v. Nolton, 19 Ohio St. 2d 133, 249 N. E. 2d 797 (1969). Because she had the burden of proof on this issue, the jury could have believed that it was just as likely as not that Martin's conduct was justified, and yet still have voted to convict. In other words, even though the jury may have had a substantial doubt whether Martin committed a crime, she was found guilty under Ohio law. I do not agree that the Court's au POWELL, J., dissenting 480 U. S. thority to review state legislative choices is so limited that it justifies increasing the risk of convicting a person who may not be blameworthy. See Patterson v. New York, supra, at 201-202 (state definition of criminal law must yield when it ""offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'" (quoting Speiser v. Randall, 357 U. S. 513, 523 (1958))). The complexity of the inquiry as to when a State may shift the burden of proof should not lead the Court to fashion simple rules of deference that could lead to such unjust results. Syllabus FEDERAL COMMUNICATIONS COMMISSION ET AL. v. FLORIDA POWER CORP. ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 85-1658. Argued December 3, 1986-Decided February 25, 1987* The Pole Attachments Act (Act) empowers the Federal Communications Commission (FCC), in the absence of parallel state regulation, to determine "just and reasonable" rates that utility companies may charge cable television systems for using utility poles as the physical medium for stringing television cable (47 U. S. C. § 224(b)(1)). The Act, in effect, also provides a range of reasonableness within which the FCC may set rates when it indicates that a minimum reasonable rate is equivalent to the marginal cost of providing pole attachments, while the maximum reasonable rate is determined by computing the fully allocated cost of the construction and operation of each pole to which cable is attached (47 U. S. C. § 224(d)(1)). Upon the complaints of three cable operators alleging that the yearly per-pole attachment rentals charged them by appellee Florida Power Corporation-$7.15, $6.24, and $5.50, respectively-were unreasonable, the FCC's Common Carrier Bureau issued orders reforming each of the pole attachment agreements to provide for yearly rents of $1.79 per pole. These orders were upheld by the FCC, which rejected appellee's constitutional arguments under the Takings and Due Process Clauses. However, on review, the Court of Appeals held that the Act violated the Fifth Amendment. The court first concluded that the Act authorized a permanent physical occupation of property constituting a per se taking for which compensation must be paid under Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419. The court then struck down the Act under the Fifth Amendment on the ground that its authorization to the FCC to make initial rate determinations under prescribed standards usurped an exclusively judicial function. Held: 1. The Act does not authorize a taking of property within the meaning of the Fifth Amendment. Pp. 250-254. (a) The Court of Appeals erred in applying Loretto's narrow per se rule, since the element of required acquiescence is at the heart of the concept of occupation under Loretto, whereas nothing in the Act, as in *Together with No. 85-1660, Group W Cable, Inc., et al. v. Florida Power Corp. et al., also on appeal from the same court. Syllabus 480 U. S. terpreted by the FCC, requires utility companies to give cable companies space on utility poles or prohibits utility companies from refusing to enter into attachment agreements. Since the Act clearly contemplates voluntary commercial leases rather than forced governmental licensing, it merely regulates the economic relations of utility company landlords and cable company tenants, which regulation is not a per se taking under Loretto. Pp. 250-253. (b) The FCC order did not effect a taking under traditional Fifth Amendment standards, which permit governmental regulation of rates chargeable on the use of private property devoted to public purposes so long as the rates set are not confiscatory. Here, the rate imposed was calculated according to the Act's maximum rate formula, which is not confiscatory since it provides for the recovery of fully allocated costs, including the actual cost of capital. Pp. 253-254. 2. Because the Act does not authorize a taking under the Fifth Amendment, it is unnecessary to review the Court of Appeals' holding that the Act is unconstitutional. P. 254. 772 F. 2d 1537, reversed. MARSHALL, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 254. Deputy Solicitor General Wallace argued the cause for appellants in No. 85-1658. With him on the brief were Solicitor General Fried, Harriet S. Shapiro, and Jack D. Smith. Jay E. Ricks argued the cause for appellants in No. 85-1660. With him on the briefs were Brenda L. Fox, E. Barrett Prettyman, Jr., and J. Christopher Redding. Allan J. Topols argued the cause for appellees in both cases and filed a brief for appellee Florida Power Corp. With him on the brief was Harry A. Evertz III. Peyton G. Bowman III and Daniel J. Wright filed a brief for appellees Alabama Power Co. et al. Shirley S. Fujimoto and Ralph A. Simmons filed a brief for appellee Tampa Electric Co.t †Paul Glist filed a brief for the Texas Cable TV Association, Inc., et al. as amici curiae urging reversal in No. 85-1658. Briefs of amici curiae urging affirmance were filed for the Edison Electric Institute by Robert L. Baum and Jan J. Sagett; for the Mountain States Telephone and Telegraph Co. et al. by L. Andrew Tollin; and for the Pacific Legal Foundation by Ronald A. Zumbrun and John H. Findley. 245 Opinion of the Court JUSTICE MARSHALL delivered the opinion of the Court. These cases present consolidated appeals from a single decision of the United States Court of Appeals for the Eleventh Circuit holding that 47 U. S. C. §224 (the Pole Attachments Act) effects an unconstitutional taking of property without just compensation. I The Pole Attachments Act, 92 Stat. 35, as amended, 47 U. S. C. §224, was enacted by Congress as a solution to a perceived danger of anticompetitive practices by utilities in connection with cable television service. Cable television operators, in order to deliver television signals to their subscribers, must have a physical carrier for the cable; in most instances underground installation of the necessary cables is impossible or impracticable. Utility company poles provide, under such circumstances, virtually the only practical physical medium for the installation of television cables. Over the past 30 years, utility companies throughout the country have entered into arrangements for the leasing of space on poles to operators of cable television systems. These contracts have generally provided for the payment by the cable companies of a yearly rent for space on each pole to which cables were attached, the fixed costs of making modifications to the poles and of physical installation of cables being borne by the cable operators. In many States the rates charged by the utility companies for these attachments have not been subject to regulation. In response to arguments by cable operators that utility companies were exploiting their monopoly position by engaging in widespread overcharging, Congress in the Pole Attachments Act authorized the Federal Communications Commission to fill the gap left by state systems of public utilities Briefs of amici curiae were filed for the Association of American Railroads by Paul A. Cunningham and Kenneth P. Kolson; and for Nor-West Cable Communications et al. by Harold R. Farrow, Sol Schildhause, and Siegfried Hesse. |