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

Implementation of Section 25 of the Cable Television Consumer Protection and Competition Act of 1992, Direct Broadcast Satellite Public Interest Obligations, MM Docket 93-25

I am pleased to support the vast majority of the decisions made in this Report and Order ("R&O"). I believe that we are bound by the directives of section 335 to establish set-asides on DBS systems. I am glad, however, that within the bounds of our discretion we have approached the implementation of this provision with a relatively light regulatory hand, picking four percent of capacity as the set-aside requirement and declining generally to impose additional public interest obligations on DBS providers. I commend the International Bureau, as well as the Mass Media Bureau and others who collaborated on this document, for their fine work.

I must dissent, however, from one portion of this R&O: the section that imposes a one- channel-per-customer limitation on DBS providers. I see nothing in the statute that speaks to the question of how space on the set-aside channels -- once the percentage of channel capacity has been established by the Commission -- should be divvied up or allocated among qualified program national educational programming suppliers. And I see nothing in the statute that suggests that the Commission should, by rule, attempt to secure a certain kind of composition or representation on the set-aside as among such suppliers.

With all due respect to the majority, there is nothing in section 335(b) about "programming on the reserved channels com[ing] from a variety of sources." Supra at para. 117. To refresh, what that section actually says is: the Commission must require licensees to "reserve a portion" of channel capacity "exclusively for noncommercial programming of an educational or informational nature," section 335(b)(1); DBS providers "may utilize . . . unused channel capacity," section 335(b)(2); DBS providers can satisfy the statute if they "mak[e] channel capacity available to national educational programming suppliers, upon reasonable prices, terms, and conditions," section 335(b)(3); and DBS providers may not "exercise any editorial control" over "video programming," section 335(b)(3). There is no reference to, or any indication of concern about, a diversity, variety, or multiplicity of noncommercial educational and informational programming.

Moreover, although the item purports in this section to rely on section 335(a)'s "public interest" authorization as a basis for the channel limitation, supra at para. 117, we previously expressly declined in this item "to impose any additional obligations on the DBS industry before we see how DBS serves the public" because "it would be burdensome at this time and could prevent [the industry] from realizing its potential." Supra at para. 64. This proposition ought to hold equally true here, and I think it does.

Finally, the channel limitation is also inconsistent with our decision that the statutory ban on editorial control extends only to the selection and editing of programming, not to the antecedent step of the selection of programmers. While the R&O thus concludes in one part that nothing in the statute bars DBS providers from choosing among qualified programmers when demand for channel space exceeds supply, see supra paras. 97-114, the item, in the next breath, seeks to constrain DBS providers in their selection of programmers with this rule, see id. at paras. 115-119. Either the statute reaches the programmer selection process, or it does not. Because its plain terms belie such reach, I would not have adopted this limitation.