dissenting.
I respectfully dissent. I believe that the district court erred in holding that the State’s interception and retransmission of cable television programming into individual prison cells comes within the “private viewing” exception of § 605(b). Accordingly, I would reverse the judgment of the district court and remand the case for further proceedings.
I believe the majority misinterprets the language and legislative history of § 605(b) in arriving at its decision. The legislative history of § 605(b) indicates that Congress intended to create a very limited and strictly conditioned exception to the broad prohibitions of § 605(a). 1984 U.S.Code Cong. & Admin.News, 4655, 4747-48. Section 605(b) permits the interception or receipt of satellite cable television programming for private viewing if (1) the programming involved is not encrypted and (2) a marketing system has not been established. Section 605(c)(4) defines the term “private viewing” to mean “viewing for private use in an individual’s dwelling unit by means of equipment, owned or operated by such individual, capable of receiving satellite cable programming directly from a satellite____” The State’s interception and retransmission of cable signals into individual prison cells does not fulfill any of the requirements of §§ 605(b), (c)(4). Each of these requirements is considered below.
Individual
The “private viewing” exception exempts individuals from the prohibitions of § 605(a). The district court and the panel majority broadly construe the term “individual” to include a large group of inmates viewing the cable television programming in their individual cells by means of a single satellite dish. This construction would permit groups of individuals in other institutions, such as hospitals and college dormitories, to use a satellite dish and supporting equipment to retransmit cable television programming to numerous individual rooms. Obviously, this is not what Congress had in mind in enacting the “private viewing” exception.
Although there are no reported cases dealing with the meaning of the term “individual” within the “private viewing” exception, a number of cases have considered the exception as applied to hotels and motels. In American Television and Communications v. Floken, 629 F.Supp. 1462, 1463-64 (M.D.Fla.1986), cable television programmers, owners and operators obtained a pre*257liminary injunction preventing hotel and motel owners from intercepting and retransmitting, without authorization, cable television programming into guest rooms. The district court held that such a use was not “private viewing”:
The “private viewing” exception was created to protect individual owners of backyard earth stations and their suppliers. Defendants’ use of satellite dishes to provide satellite cable programming for their hotel/motel guests without payment of subscription fees, and for their own commercial advantage does not fall within the “private viewing” exception. This conclusion is mandated not only by the language of the statute, but also by the legislative history. According to the legislative history, the drafters of the bill neither contemplated nor intended that the “private viewing” exception include private cable systems____
Id. at 1469; accord, ESPN v. Edinburg Community Hotel, Inc., 623 F.Supp. 647, 652 (S.D.Tex.1985) (retransmission to hotel rooms was not “private viewing”).
The district court distinguished the above cases from the present case on the basis that the State is not receiving financial gain from its operation of the satellite dish. The majority likewise found the absence of any financial gain or benefit to the State to be significant. Although I agree that there is no financial gain to the prison, in the sense of increased profits resulting from an increase in “customers” as with a hotel or motel, there is a financial benefit to the State. The cable system, as the district court found, is an aid in maintaining order at the prison and is received free of charge. The prison thus receives a benefit for which others in the franchise area of Sioux Falls Cable must pay a fee.
Even if I were to assume, however, that the receipt of cable services by prison inmates does not result in a financial benefit to the State, I would nonetheless hold that the State’s reception and retransmission are prohibited by § 605(a). The legislative history indicates that the prohibitions of § 605(a) do not apply only to those who are receiving financial gain. 1984 U.S.Code Cong. & Admin.News at 4741. Commercial advantage or financial gain is not relevant in determining if § 605(a) has been violated, but is relevant in determining criminal penalties and treble civil damage awards. See 47 U.S.C. § 605(d)(2), 605(d)(3)(C)(ii).
Private Dwelling Unit
Section 605(c)(4) states that the viewing must be “for private use in an individual’s dwelling unit.” The legislative history provides further guidance as to what is meant by “dwelling unit.”
The term “private viewing” is intended to describe a situation whereby an individual purchases or otherwise acquires satellite receiving equipment and uses such equipment to receive satellite cable programming which he [or she] views within his [or her] private dwelling place. The “individual’s dwelling place” is a place not open to the public. It is a place where generally the persons present are within the normal circle of a family or its social acquaintances.
1984 U.S.Code Cong. & Admin.News at 4749. For example, the Senate Report states that “an individual’s dwelling unit includes a vacation home, an individual’s mobile home unit (but not a mobile home park), an individual’s recreational motor home vehicle or boat which is designed with sleeping accommodations for no more than a few people.” Id. at 4741. Even if I were to accept, as the majority does, that the inmate’s individual prison cell is his or her private dwelling unit for the period of his or her imprisonment, the legislative history nonetheless clearly shows congressional intent to exclude from the “private viewing” exception groups of individuals who receive satellite programming from a single satellite dish. I believe that a prison is similar to a mobile home park, which is expressly excluded from the “private viewing” exception in the legislative history. Thus, I conclude that Congress did not intend to include inmates’ cells in a prison within the definition of a private dwelling place.
Ownership of the Equipment
Section 605(c)(4) further requires that the equipment used by an “individual” in his or *258her “dwelling unit” be owned or operated by such individual. In the present case, the State concedes that it is the legal owner of the satellite dish and supporting equipment but argues that the inmates are the equitable owners.
I believe that the district court clearly erred in determining that the inmates were the equitable owners of the satellite dish and equipment.1 Admittedly, the satellite dish and equipment were bought with funds generated by inmate commissary purchases, however, without more, this is insufficient to constitute equitable ownership. Inmates did not “contribute” funds to purchase the satellite dish and other equipment, as the majority asserts. Rather, inmates purchased items from the commissary and the profits from the sales went into a commissary fund, which the State at its discretion used for the inmates’ benefit. The State alone determined that monies from the commissary fund would be used to purchase the satellite dish and equipment and the State alone determines whether and how the equipment is to be used. The inmates, neither individually nor collectively, have any property rights they can assert against the State. Thus, the satellite dish and equipment are owned and operated by the State and not by the individuals viewing the cable television programming, as required by the “private viewing” exception.
Retransmission of the Signals
The legislative history makes clear that the “private viewing” exception does not permit the reception, amplification and retransmission of cable television programming to other dwelling units or residences.
[I]t is not intended that “private viewing” include any retransmission by so-called “private cable” or “satellite master antenna television” systems. Nor is it contemplated that an individual may redistribute programming received by his satellite equipment to the homes or residences of his neighbors.
1984 U.S.Code Cong. & Admin.News at 4749-50. The State admitted that the system includes an eight-foot satellite dish, a bank of six receivers, six modulators and an amplifier which retransmits signals to each inmate’s individual cell. The prison has, in effect, set up a private cable system that retransmits cable television programming and thus the State’s actions do not come within the “private viewing” exception.
Established Marketing System
The “private viewing” exception is only applicable2 if a marketing system has not been established for the authorization of private viewing. § 605(b)(2)(A). Sioux Falls Cable offered evidence that it was the local agent authorized to act for program providers such as HBO and ESPN in granting permission to satellite dish owners to intercept cable programming and offers its services to the public. § 605(b)(2)(A)(ii), (i). The State did not dispute this evidence.
The majority concludes, however, that Sioux Falls Cable failed to prove that an appropriate marketing system was established because prison officials did not permit inmates to subscribe to cable television programming on an individual basis. I must disagree. The availability of authorized cable service, within the meaning of § 605(b)(2)(A), does not depend on whether inmates may contract for cable service. It is undisputed that Sioux Falls Cable offers its cable services to prison inmates and in fact had provided cable service to the inmates before the State installed its satellite dish. Sioux Falls Cable stands ready to provide these services again to prison inmates for a fee — this is what this lawsuit is all about.
The majority stresses the internal problems which the prison officials encountered when an inmate group was responsible for collecting fees from individual inmate subscribers and the deference to be paid to prison officials’ decisions to discontinue *259this system. Such considerations, however, are not relevant to the question of the availability of authorized cable service through an established marketing system; the propriety of the State’s decision to terminate the earlier cable service contract is not at issue. The only question is whether authorized cable service through a marketing system is available. Clearly, the only limitation on the availability of cable services to prison inmates is that imposed by the State itself. Ironically, the State has, perhaps for legitimate reasons, prohibited inmates from contracting directly with Sioux Falls Cable and now justifies its interception and retransmission of cable television programming on the basis that this prohibition makes authorized cable service unavailable to the inmates.
Even if I accept for argument purposes that the infeasibility of providing cable services to inmates on an individual fee basis makes authorized cable service unavailable, within the meaning of the statute, I do not believe the State has established infeasibility. At best the. State has demonstrated that one system — inmate collection of fees — resulted in internal problems which made the system unworkable. However, there was no evidence that other systems were tried or even considered. One thus must wonder why the individual subscription fees could not be collected by prison officials, instead of inmates, if this was the source of the internal problems.
Conclusion
I recognize, as does the majority, that there are unique problems involved in providing inmates access to cable television services. The prison’s desire to circumvent these problems and at the same time to provide cable services as an aid to maintaining order and as a recreational benefit to inmates does not outweigh Sioux Falls Cable’s right to receive fees for cable services. Congress in § 605(a) has expressly prohibited the unauthorized reception of cable television programming. An individual or entity, no matter how laudable the motives, may not receive or retransmit cable services without authorization unless the receipt of the services comes within the private viewing exception of 605(b). The State’s receipt and retransmission of cable signals does not come within this exception. Thus, I would reverse the district court and remand for further proceedings consistent with this opinion.
. My analysis similarily leads me to conclude that the inmates do not "operate" the equipment within the meaning of § 605(c)(4).
. The “private viewing” exception is also not applicable if the programming is encrypted. 47 U.S.C. § 605(b)(1). This is not an issue in this case.