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November 19, 1998


Re: Implementation of Section 25 of the Cable Television Consumer Protection and Competition Act of 1992; and Direct Broadcast Satellite Public Interest Obligations (MM Docket No. 93-25)

We have been asked to implement various mandates Congress imposed on Direct Broadcast Satellite (DBS) operators as part of the 1992 Cable Act. In most parts of this order, I believe that we have implemented the will of Congress and I fully support those portions of the order. To my mind, however, in one part of the order, the majority is not implementing the will of Congress, but inventing it. Because I am unwilling to speculate in order to regulate, I respectfully dissent from that portion of the item.

As an initial matter, let me briefly address the issue of editorial control. Although I understand and respect that others may have different interpretations of the statute, I believe, for the reasons explained in the order, that our interpretation of the statute is faithful to Congress intent and will produce the best result for the American people. My judgement in this regard is buoyed by the fact that the results produced by any other interpretation of the statute strike me as either unworkable or overly intrusive. For example, alternatives such as a subscriber survey strike me as administratively burdensome. Indeed, I have great difficulty imagining how such a process would work. Other alternatives suggested by the commenters, such as the proposal to require some third party decisionmaker, smack of undue government intrusion contrary to our principles of free speech. The only other obvious alternative, requiring some form of first-come, first-served access, is unlikely to produce the best use of this valuable spectrum.

This leads me to the aspect of this decision from which I must respectfully dissent, the portion of the decision that imposes an initial limit of one channel per DBS system for each national educational programming suppliers. In my view, this is an artificial limitation not called for by the statute nor needed as a policy matter. With regard to the law, I note that on its face, the statute seeks to ensure that a type of programming noncommercial educational and informational programming is available to the American people subscribing to DBS service. Nothing in the statute indicates that the FCC should go beyond ensuring that DBS operators make capacity available for such programming to also adopt rules about who will provide the programming. Rather, so long as the DBS operator makes the capacity available to programmers that fall within the category of programmers specified by Congress and those programmers proved the type of programming contemplated by the statute, the congressional intent will be fulfilled. We need go no further.

I also object to this limitation as a matter of policy. This rule is over-regulatory and depends upon speculative conclusions that government intrusion is necessary to ensure diversity and variety on these channels. I see no basis for such a conclusion. Each of the DBS operators offering service today provides a wide variety of programming that runs the gamut from entertainment to news, information and instruction. These operators clearly have found that diversity in programming helps to gain subscribers some seven million or so and growing. Given this dynamic in the industry, I see no reason to intrude. Under these circumstances, I cannot support this limitation and will respectfully dissent from this portion of the order.