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In the Matter of Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from Media One Group, Inc., Transferor, To AT&T Corp., Transferee, CS Docket No. 99-251

Statement of Commissioner Harold W. Furchtgott-Roth,
Concurring In Part and Dissenting In Part

I concur in the approval of Media One's application to transfer certain licenses and authorizations to AT&T conditioned upon compliance with extant Commission (FCC) rules and applicable statutory provisions, such as the cable-telco buyout prohibition. I must dissent, however, from the importation of the so-called "four-pronged public interest test" from our common carrier decisions into this new context and also from the "interim conditions" imposed upon AT&T regarding its interest in Time Warner Entertainment (TWE).

As I have stated many times, I believe that we should review license transfer proposals for consistency with the Communications Act and existing administrative regulations.1 Contrary to the language of this Order, the proper approach to the question of the merged entity's power in the video programming market is simply to apply the cable horizontal ownership limits. These rules have an express statutory basis, and Congress mandated that we adopt them out of the very concerns that animate the comments on this issue. There should be no "public interest" overlay that might subject a party to either a less or more restrictive understanding of horizontal ownership restrictions; if that were so, then the rules would not be rules at all, and regulated parties could never ascertain their compliance with our regulations. I do not deny that section 309 requires a "public interest" finding, but to my mind that standard is applied and satisfied when specifically applicable rules are applied and satisfied.

Accordingly, I do not support the public interest framework referenced throughout this Order. See, e.g., Order at para. 8. The first two prongs provide that the proposed transfer should not result in a violation of the Communications Act or other statutory provision or Commission regulation, which is all well and good.2 The remaining prongs, however, are phrased at such a level of bureaucratic generality that it is, an initial matter, difficult to grasp what they actually mean. See id. (asking "whether the transaction would substantially frustrate or impair the Commission's implementation or enforcement of the Communications Act , or would interfere with the objectives of the Communications Act and other statutes" and "whether the merger promised to yield affirmative public benefits"). The Commission's implementation of the Act can only properly depend on what it has been authorized to do under the Act, so I do not see what this adds to the analysis. "Interfering with an objective" of the Act connotes, I take it, something other than violating the Act, so this language seems an express attempt to expand Commission jurisdiction beyond that actually conferred by Congress. And referring to "public interest benefits," without more, as an element of the "public interest test" is wholly circular. In short, what these prongs seem designed to do, and indeed allow, is departure from the terms of the Act and our own regulations. Such departure amounts to a violation of our statutory limits and unfairly subjects merging parties to unknowable and undefined standards.

For similar reasons, I dissent from the "safeguards" governing AT&T's relationship with TWE. In implicit recognition of the fact that the horizontal ownership cap is indifferent as to the video programming nature of companies with cable subscribers, the Order relies on the third prong of the above test as the source of its authority for these conditions. In particular, the Order states the requirements will "ensure that the merger will not frustrate [or] impair the Commission's implementation of the Communications Act and its objectives with regard to the promotion of competition and diversity in the provision of video programming." Order at para. 80. But our "objectives" with respect to video programming are delineated by section 613. If the rules promulgated pursuant to that provision do not address AT&T's ability to keep some of their subscribers in TWE as opposed to elsewhere, then neither can this Order, whether permanently or on an interim basis. Indeed, the fact that the Commission declines under the horizontal cap regulations to mandate divestiture of TWE as an ultimate matter suggests that it lacks power to do so even temporarily.

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1. I have recognized this principle and applied extant regulations to pending applications even when I might disagree with the regulations as a matter of policy. See, e.g., Statement of Commissioner Harold W. Furchtgott-Roth, Concurring in Part and Dissenting in Part, In the Matter of CBS/Viacom (rel. May 3, 2000) (concurring in application of national broadcast cap to instant application because rule, while under regulatory review, was effective at time of Commission review).

2. Notably, we limited ourselves to just this narrow sort of review in the CBS/Viacom matter. There, we made no mention of a public interest overlay, a four- pronged test, or anything other than the statutes and rules that governed the transaction in question. The approach taken here represents a marked departure from that one, and I see nothing inherent in the nature of the transactions - both are transfers of section 309 licenses - that could rationally justify today's abrupt and unexplained change in course.