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June 5, 2000


Re: Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from MediaOne Group, Inc., Transferor, to AT&T Corp., Transferee.

I support the Commission's decision today to grant the transfer of licenses from MediaOne Group, Inc. to AT&T Corp. I concur in the decision, however, because I am concerned about the manner in which our public interest authority is applied in the item. Generally, I support the application of our four-part public interest test in the context of large and complicated telephone mergers. However, where rules comprehensively embody our goals and fulfill the public interest standard without rote application of the four factors, I believe that simply applying the rule is a better approach. It is the approach we took recently in our decision to approve the CBS/Viacom (1)

merger, and I believe it should have been followed here.

The Communications Act states that authorizations made by the Commission must be made upon a finding that the public interest, convenience and necessity would be served. (2)

In some circumstances, the Commission has extrapolated this standard into a four-part public interest test. (3)

To my mind, the across-the-board application of this four-part test threatens the benefits that come from clear and concise rules of government. It is a constant mantra of this Agency that the public and industry benefit from clear and specific rules and regulations. For example, we bemoan rule by waiver and strive to make our rules the final arbiter of issues presented to the Commission. This was an important goal of ours in revising the cable horizontal ownership rules last October, (4)

as well as our broadcast ownership rules in August. (5) I commend this approach and remain committed to it.

I would argue, however, that importation of the four-part public interest test as an overlay to the application of specific rules that already address identified harms makes the rules less clear in a way that is detrimental to the public interest. In cable and broadcast regulation, for example, we have an extensive and comprehensive set of structural rules whose goal is the redress of myriad harms to the public interest. As the industry prepares to comply with these extensive rules, and structure business decisions around them, they deserve the benefit of certainty as to how these rules are going to be applied. The public deserves the benefits of knowing the ground rules we will use to evaluate mergers as well.

Rote application of the test implies that even if you were to comply with the rules specifically designed to address the harms at issue, we may still find that the activity proposed would "frustrate or impair the Commission's implementation or enforcement of the Communications Act, or would interfere with the objectives of the Communications Act or other statutes." Such an approach, I believe, subsumes the rules and puts too much weight on our more ambiguous "public interest" authority. That authority is meant to complement, not override, existing rules. In addition, it adds a layer of uncertainty that makes the application of even the clearest of our rules a vague and ambiguous process. In circumstances where we have a rule that addresses issues raised by a merger, I would apply the rule and find that the public interest is satisfied.

As a result, I concur in today's decision.

1. In the Matter of the Applications of Shareholders of CBS Corporation, and Viacom, Inc., For Transfer of Control of CBS Corporation and Certain Subsidiaries, Licensees of KCBS-TV, Los Angeles, CA, et al., 15 FCC Rcd 8230 (2000).

2. See, e.g., 47 U.S.C. Sections 214(a), 310(d).

3. According to that test, the Commission will evaluate whether an applicant has met its burden of proof that the transfer will advance the public interest by considering the following factors:

  1. Whether the transaction would result in a violation of the Communications Act or any other applicable statutory provision;

  2. Whether the transaction would result in a violation of Commission rules;

  3. 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 or other statutes; and

  4. Whether the merger promises to yield affirmative public interest benefits.

4. Implementation of Section 11 of the Cable Television Consumer Protection and Competition Act of 1992: Horizontal Ownership Limits, 14 FCC Rcd 19098 (1999).

5. Review of the Commission's Regulations Governing Television Broadcasting; Television Satellite Stations Review of Policies and Rules, 14 FCC Rcd 12903 (1999).