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SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH,
CONCURRING IN PART AND DISSENTING IN PART

Re: Public Interest Obligations of TV Broadcast Licensees, Notice of Inquiry

I believe today's Notice of Inquiry is a significant step in implementing Section 336's directives regarding the transition from analog to digital broadcast services. The birth of digital television raises discrete issues regarding application of our existing public interest requirements during the transition period and beyond. I concur in the Commission's decision to utilize the flexibility afforded by a Notice of Inquiry to develop a record on these narrow issues.

However, I am both surprised and disturbed by many aspects of the Notice. First, the majority has crafted a document of vast breadth, often musing about public interest mandates that have no discernible nexus to the transition to digital technology. Rather, it appears that special interests have seized on this opportunity to wring as many concessions as possible out of broadcasters. For example, the NOI considers proposals that broadcasters fund solutions to such diverse problems as minority access to capital and the quality of our political discourse. I believe even suggesting such broad policies in this deregulatory and competitive age is pure folly.

Second, this NOI is remarkably out-of-step with today's communications marketplace. The Notice seems to reflect a vintage 1960s' big-government pro-regulation philosophy based on the fundamental factual premise that broadcast television is the sole, dominant media outlet. Yet the new millennium is a vastly different time. The Commission's rules should be moving towards deregulation, not further burdening the emergence of one nascent mass media competitor: digital television (DTV).

Third, I am uncomfortable with this independent agency taking its "guidance" and "focus" from an executive branch Committee and the Vice President on issues that are exclusively within our jurisdiction.(1) Moreover, the timing of today's Inquiry - only weeks after the arrival of a letter request for such action by the Vice President - casts unfortunate doubt on our independence as an agency.

Based on these three factors, I respectfully dissent in part from this Notice of Inquiry.

I. A Limited Inquiry

As noted above, I do believe that this proceeding will assist the Commission in applying our current public interest obligations to DTV. As acknowledged by the Notice, Section 336 (d) of the Act states "[n]othing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience and necessity."(2) That section also requires that "[i]n the Commission's review of any application for renewal of a broadcast license for a television station that provides ancillary or supplementary services, the television licensee shall establish that all of its program services on the existing or advanced television spectrum are in the public interest." Thus, the statute supports the Commission's application of its current public interest obligations to DTV and an assessment of the role of these obligations, if any, to ancillary or supplementary services.

Therefore I believe this NOI rightly addresses such issues as how the public interest obligations apply in a multicast environment ( 11), the public interest obligations (if any) that should apply to ancillary and supplementary services provided by DTV broadcasters ( 13), and the closed captioning obligations of DTV under Section 305 (f) ( 23). Unfortunately, the NOI does not stop there. Instead it goes on (and on) with a laundry list of potential opportunities for "freebies" to be extracted from broadcasters for various "public" purposes - most of questionable utility and legality.

II. The Great DTV Society?

The NOI transforms this proceeding into a roving mandate to seek out "good" things that we can make broadcasters do. The item does not appear to require any particular linkage between the proposals and the transition to DTV. In some cases, there is little connection to broadcasting at all. Moreover, there seems to be little regard for the nature of our statutory authority in this area or the limits imposed by the Constitution.

The proposals are breathtaking in scope. The NOI postulates that broadcasters may: be forced to provide subsidized datacasting to schools and libraries ( 13), face new minimum standards for satisfying their public interest obligation ( 19), and be required to set up Internet chat rooms to discuss their public interest obligations ( 17). The NOI also details a proposal to carve out a channel in cleared analog spectrum for minority educational broadcasting (29) and searches for ways broadcasters can be used so that "the quality of political discourse might be improved" ( 31). Apparently the Notice dreams of creating a new Great DTV Society.

Even if the proposals contained in this Notice had merit - which I believe most of them do not - it eludes me as to why this NOI has become the vehicle for so many big government causes designed to cure virtually every social ill through the mandated largesse of broadcasters. To be sure, there was an argument to be made that broadcasters should pay for their DTV spectrum. Indeed that argument was made in the proper time and place: during the legislative process in Congress. That debate has now been settled through passage of Section 336. It is not for us to backdoor that process by now extracting our pound of flesh for this spectrum.

The vast number of ideas set forth in the Notice makes it difficult to address them all in any detail. However, I discuss below two prominent examples that illustrate these misguided applications of our "public interest" authority.

A. Improving Political Discourse?

In paragraphs 31-34, the Notice sets forth various proposals to grant candidates "free" air time. Congress has repeatedly debated and refused to adopt such a requirement. This legislative activity makes it all the more difficult to assert the legal argument that we have had "public interest" authority to adopt such a requirement all along. (3) Indeed, I have trouble imagining how we could explain, as the Supreme Court has consistently required, that "free" time is "'reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting.'"(4)

Free air time is also just bad policy - a bad policy that has no relationship to the stated purpose of the NOI. First, just who would pay for all of this "free" air time? Broadcasters would, through lost advertising revenue. What this proposal thus amounts to is a painful and targeted tax on their industry in order to fund a general public benefit. This proposal would merely shift the costs of political air time from those who willingly donate to political candidates to the broadcast industry and American consumers, whose resultant funding of this speech could hardly be considered voluntary. In addition, it is not at all clear that free airtime would advance the majority's apparent goals of "promot[ing] democracy" and "better educating the voting public."(5)

B. New Minimum Obligations?

I am also troubled by the portion of the item that asks whether we should specify and quantify broadcasters' public interest obligations. Of course, the closer the Commission gets to outright mandates of type and time for broadcast programming, the more perilously near protected First Amendment ground one gets. As the D.C. Circuit put it:

"[I]n applying the public interest standard to programming, the Commission walks a tightrope between saying too much and saying too little. In most areas it has resolved this dilemma by imposing only general affirmative duties-e. g., to strike a balance between the various interests of the community, or to provide a reasonable amount of time for the presentation of programs devoted to the discussion of public issues. . . . Given . . . [the Commission's] long-established authority to consider program content, this general approach probably minimizes the dangers of censorship or pervasive supervision."(6)

This is reason enough for caution.

I also believe that it is simply better policy to leave broadcasters with discretion to define and implement their public interest programming, especially local programming. Broadcasters have every reason to serve their local communities and, if they do not meet that challenge, they will go out of business. Ultimately, it is the broadcaster who seeks and finds the local public interest. To my mind, that is a "public interest" standard that has worked well. Indeed I am quite skeptical of government's ability to substitute its judgment for the broadcasters in order to "help [broadcasters] serve their communities better and more fully."(7)

III. The Wrong Direction

Fundamentally, the NOI is out-of-step with today's market and regulatory landscape. In an age where Americans receive information from an increasing diversity of sources, including cable television and the Internet, it seems increasingly anachronistic to saddle broadcasters with additional unique regulatory burdens. Even without such diversity, in a purportedly deregulatory era at the Commission, vast new obligations on broadcast licensees untethered to any technological change seems bizarre. Although I am heartened that this is only an NOI, the mere presence of these notions troubles me greatly.

The primary rationale for broadcasters' public interest obligations has been the theory that broadcast spectrum is a peculiarly scarce resource.(8) Absent spectrum scarcity, however, the justification for affording broadcasters less First Amendment protection than persons engaged in other modes of communication becomes difficult to discern. As I explained in the Biennial Review of Mass Media Ownership Rules, I believe that the Commission must review the empirical basis of "spectrum scarcity" in that proceeding. Should we conclude in that docket that spectrum scarcity is no longer viable as a factual matter, then the instant effort to engage in additional regulation will be highly problematic in constitutional terms.(9)

Even beyond the questionable legitimacy of the scarcity rationale, the NOI seems to signal a willingness by the Commission to return to the highly regulatory policies of the past to achieve tangential policy goals. For example, in the 1980s we eliminated our ascertainment requirements as an unnecessary burden on broadcasters.(10) Yet this NOI describes enhanced disclosure requirements including that "digital TV broadcasters take steps to distribute public interest information more widely, through newspapers and websites."(11) Now broadcasters would apparently not only be forced to use their own mediums to advance general public policy goals, but also required to spend funds on other media. Apparently intoxicated by the opportunity presented by the NOI, the majority seems to have imposed no limits on "goodies" to be extracted from broadcasters for their DTV spectrum.

The NOI also fails to acknowledge the current critical stage of the broadcast industry. The industry faces many difficult and expensive challenges in moving into the digital age. The Commission should focus its attention on maximizing the public benefits from the promises of digital broadcasting, not creating new regulatory burdens that may slow down that process.(12)

IV. Dancing to the Executive Branch's Tune?

Finally I would like to voice my discomfort with the unfortunate timing of this item and the prominent role given in the NOI to the President's Advisory Committee on the Public Obligations of Digital Television Broadcasters (Advisory Committee). I know that some of my fellow Commissioners have supported many of the proposals in the Notice for a very long time and have supported Commission action to further those policies. I fear the Executive Branch's actions may undermine my fellow Commissioners' policy goals.

The Advisory Committee, chosen by the President, produced a thorough and interesting report on DTV. Yet regardless of its merit, I see no basis for the FCC to be "guided by" this Report.(13) As an agency we are not designed to be beholden to the Administration. To the contrary, we are designed to be independent. As such, the Administration's policy wish list is entitled to no greater attention than that of any other party to our proceedings. Indeed, where Congress wishes us to give executive branch views special weight, it says so directly.(14) By ceding guidance of this NOI to the Administration, we undermine the very core of our mission as an agency.

Our independent status is also undermined by the appearance that this NOI is being issued at the behest of the Executive Branch. Many of these public interest proposals for DTV have been floating around the agency for years. Indeed, the Fifth Report and Order calling for the initiation of this inquiry was released on April 21, 1997.(15) Even the foundational documents cited by the Notice are over sixth months old. The Advisory Committee Report itself was filed on December 18, 1998. The People for Better TV petition was filed on June 3.

However, a few weeks ago we received a letter from the Vice President urging the Commission "to begin . . . addressing the following four issues in public proceedings: the need for higher quality political discourse, disaster warnings in the digital age, disability access to digital programming, and diversity in broadcasting."(16) Today's NOI addresses each of those four areas. The timing of this Notice creates the unfortunate appearance that we are acting at the direction of the Administration.

*****

I look forward to reviewing the materials filed in this NOI. It is my hope that, once the record is complete, we will pull away from the more questionable proposals and focus on our mission: to translate our existing public interest mandates into the DTV age. Due to the scope of the Notice, I nonetheless dissent in part from this item.


1    See NOI 6.

2   See NOI 4.

3   Putting aside the scope of our statutory authority, it is also not clear that such a requirement would be constitutional. See, e.g, Lillian R. BeVier, Is Free Time for TV Candidates Constitutional? (AEI 1998); Rodney A. Smolla, Free Air Time for Candidates and the First Amendment (The Media Institute 1998).

4   FCC v. Midwest Video, 440 U.S. 689, 708 (1979)(quoting United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968)). It seems to me that the essential aim of the current proposal is not necessarily to promote goals directly related to broadcasting but rather to redress the perceived problem of escalating campaign costs and the public's attendant opinion of the influence of money on politics. The proposal's relation to broadcasters is really an incidental one: broadcasters provide a convenient means to achieving the posited governmental end -- decreasing the influence of money in politics -- but they are not in themselves part of the problem at which the proposal is aimed. Mandating "free" television -- when section 312(a)(7) expressly provides broadcasters with a choice between the provision of free and paid time and when section 315 guarantees political candidates "equal opportunities" but "no more," Kennedy v. FCC, 636 F.2d 172 176 (D.C. Cir. 1980), as well as air time at the "lowest unit charge" not free of charge -simply disregards the overall statutory scheme. Such an approach would violate the well-established maxim that statutes should not be read so as to render other parts superfluous. See United States v. Menasche, 348 U.S. 528, 538-539 (1955)).

5   NOI 31.

6   Banzhaf v. FCC, 405 F.2d 1082, 1095 (D.C. Cir. 1968) (emphasis added).

7   NOI 14.

8 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

9    Even prior to the pervasive availability of the Internet, there was no scarcity of criticism of the lessened First Amendment protections afforded broadcasters based on the discrete amount of spectrum available. See Separate Statement of Commissioner Harold Furchtgott-Roth, In the Matter of Review of the Commission's Regulations Governing Television Broadcasting, MM Docket No. 91-221; and in the Matter of Television Satellite Stations Review of Policy and Rules, MM Docket No. 87-8 (Aug. 5, 1999); Michael K. Powell, "Willful Denial and First Amendment Jurisprudence," Speech delivered to the Media Institute, Washington, D.C. (April 22, 1998); Action for Children's Television v. FCC, 58 F.3d 654, 670-683 (1995)(Chief Judge Edwards Dissenting)("And with the development of cable, spectrum-based communications media now have an abundance of alternatives, essentially rendering the economic scarcity argument superfluous."); Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 508-09)(D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987); Lucas Powe, American Broadcasting and the First Amendment 197-209 (1987); Matthew Spitzer, Seven Dirty Words and Six Other Stories 1013-1020 (1986).

10 Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial TV Stations, MM Docket No. 83-670, Report and Order, 98 FCC 2d 1076 (1984), recon. denied, 104 FCC 2d 358 (1986), rev'd in part, ACT v. FCC, 821 F.2d 741 (D.C. Cir. 1987).

11    NOI 15.

12     For example, any delay in digital deployment could correspondingly hold up efforts to use the spectrum for Channels 60-69 for other public interest purposes.

13     The NOI has even put forth ideas that did not garner the full support of the Advisory Committee. NOI 34.

14     See 47 U.S.C. 271 (d)(2)(a)(requiring the FCC to give "substantial weight" to comments filed by the Attorney General).

15     Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service, MM Docket No. 87-268, Fifth Report and Order, 12 FCC Rcd 12809 (April 21, 1997).

16   Letter from Vice President Al Gore to William E. Kennard, Chairman, FCC Oct. 20, 1999).