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SEPARATE STATEMENT OF COMMISSIONER KATHLEEN ABERNATHY

In re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules et al; WT Docket No. 99-168, CS Docket No. 98-120, MM Docket 00-39, Order on Reconsideration and Third Report and Order, FCC 01- 258 (rel. September 17, 2001).

Today's decision moves the Commission one step closer to the Congressionally mandated goal of transitioning the 746-764 and 776-794 MHz broadcast bands to new public safety and commercial uses. The Commission has struggled to balance the needs of the incumbent broadcasters and their analog viewers in these bands with the mandate to transition this spectrum prior to the end of the DTV transition. I support the prior Commission's policy of facilitating private transactions that allow for incumbents to clear the band early. This policy framework is completed in today's order by removing some lingering regulatory impediments to such transactions. In my view today's order is another example of the Commission getting it right: removing needless regulatory uncertainty to allow licensees, consistent with the public interest, to more freely exercise their rights as they see fit.

Today's order provides for regulatory symmetry between single channel broadcasters who were not eligible for a second channel and those left with a single channel as a result of a voluntary band clearing arrangement.1 Therefore it allows broadcasters that are left with a single channel after a voluntary band clearing transaction to continue to broadcast in analog until 2005 or later -- if less than 70% of the area's households are capable of receiving a digital broadcast signal.2 In addition, these stations are also granted the same 31-month replication period after beginning to transmit in digital that the Commission provided to all broadcasters in the DTV Biennial Review Order.3 Finally the Commission assures licensees that it will endeavor to provide prompt service to these licensees by processing routine spectrum clearing applications within 90 days of receipt.4

While our goal is not to stand in the way, the Commission also does not abdicate its responsibility to analyze each transaction's impact on the public interest. There are significant public interest benefits to such transactions. For broadcasters, these transactions will speed up the inevitable - relocation from this band-while providing additional resources for the DTV transition. Congress has mandated that this spectrum be reclaimed from strictly broadcasting use and designated for new uses. Therefore delay in relocation only prolongs the period of uncertainty for all the parties involved. Private band clearing arrangements will also provide the resources for these stations to make the digital transition more smoothly. The DTV transition is an expensive proposition. For some stations in this band, the funds made available through voluntary band clearing may make the difference between going digital and going dark.

The private transactions will provide benefits to new commercial and public safety wireless services in these communities. In particular, spectrum clearing will speed fulfillment of the congressional mandate to provide for additional public safety spectrum for enhanced voice and data communications as well as interoperability channels that will greatly enhance the ability of multiple public safety entities to communicate with one another, particularly in emergencies. The fine work of the Public Safety National Coordination Committee (NCC) has aided the Commission in adopting the appropriate regulatory approach to this vital public safety resource.5 The sooner the band is cleared, the sooner these services can be deployed. In addition, guard band licensees have already purchased spectrum in these bands and also await band clearing to launch their operations.6 Finally, the Commission will auction off 30 MHz of commercial wireless spectrum for potential use for wireless advanced services, such as third generation wireless systems.7 All of these applications await clearing of the band.

There are cases where the Commission has determined that the public interest benefits described above do not weigh as clearly in favor of spectrum clearing agreements. Therefore where the proposed transaction would result in the loss of a top four station, the sole local station, or the sole noncommercial educational broadcast service our public interest presumption in favor of the transaction does not apply.8 It is also important to keep in mind that not a single broadcaster will ever be forced to relocate as a result of our decisions in this docket. The Commission has simply cleared away some regulatory uncertainty to permit licensees to act freely in the marketplace and to exercise more readily the bundle of rights inherent in their existing authorizations.



1 In re Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules et al; WT Docket No. 99-168, CS Docket No. 98-120, MM Docket 00-39, Order on Reconsideration and Third Report and Order, FCC 01-258 (rel. Sept. 11, 2001).

2 Id. at 10.

3 Id. at 20 (citing DTV Biennial Review Order, 16 FCC Rcd at 5956 21).

4 Id. at 28.

5See Public Safety National Coordination Committee's Recommendations to the Federal Communication Commission for Technical and Operational Standards for Use of the 764-776 MHz and 794-806 MHz Public Safety Band Pending Development of Final Rules (Feb. 25, 2000) (NCC Report). The NCC Report included detailed technical information. See also The Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communication Requirements Through the Year 2010, WT Docket 96-86, Fourth Report and Order and Fifth Notice of Proposed Rule Making, 16 FCC Rcd 2020 (2000)(Fourth R&O). Copies of the NCC Report and the Fourth R&O can be obtained via the Internet at http://www.fcc.gov/wtb/publicsafety/ncc.html, or from Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554.

6 The initial auction of 700 MHz guard band licenses was completed on September 21, 2000 (Auction No. 33), and the subsequent auction of the eight remaining Guard Band Manager licenses concluded on February 21, 2001 (Auction No. 38). See http://www.fcc.gov/wtb/auctions/.

7 See "Auction of Licenses for the 747-762 and 777-792 MHz Bands (Auction 31) is Postponed, Public Notice, Report No. AUC-01-31-B (rel. July 11, 2001).

8 Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules et al; WT Docket No. 99-168, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd. 20845, 20870-71 (2000).