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Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions of Part 27 of the Commission's Rules, Order on Reconsideration of the Third Report and Order, WT Docket No. 99-168

I concur in today's result because it will allow viewers to continue to enjoy free, over-the-air analog broadcasts in instances where a broadcaster chooses to give up one of its two channel allotments as part of an agreement to clear the upper 700 MHz band. I write separately because preserving viewers' access to over-the-air broadcasting is a result but not a factor in today's decision, which continues the Commission's singular focus on clearing this band for new wireless services.

This proceeding involves four competing interests: the promise of new wireless services, public safety access to much needed spectrum, the transition to digital television (DTV), and the continued ability of today's viewers to enjoy free, over-the-air broadcasts. Early in this proceeding, I voted in favor of a band clearing approach that weighed these interests on a case-by-case basis, consistent with Commission precedent regarding use of spectrum and the possible loss of broadcast services.

I broke with my colleagues when the majority chose to defer spectrum use decisions to private parties and adopted a strong presumption in favor of band clearing. This policy was intended to provide wireless providers with certainty that they would be able to clear existing broadcast stations from the band. To that end, the majority abandoned the Commission's long-standing standard of review, applied on a case-by-case basis, that "once in operation, a [broadcast] station assumes an obligation to maintain service to its viewing audience, and the withdrawal or downgrading of existing service is justifiable only if offsetting factors are shown which establish that the public generally will be benefited."(1)

The majority asserted that a strong presumption in favor of clearing the band would serve two public policy purposes: "to facilitate the clearing of the 746-806 MHz band to allow for the introduction of new wireless services, and to promote the early transition of incumbent analog television licensees to [DTV]."(2) Broadcasters that relinquished their interests in a channel allotment, it was presumed, would acquire additional resources to build out DTV facilities by the Commission's May 2002 deadline. The decision concluded that today's viewers would experience a "temporary loss" of analog service that was deemed acceptable. For the millions of Americans who only receive over-the-air broadcasting - many of whom are among the nation's poorest - this temporary loss could be permanent given rising charges in the MVPD market and the high cost of DTV sets. I dissented because Congress never envisioned a Commission policy to facilitate early recovery of the broadcasters' spectrum at the expense of today's free, over-the-air viewers.

On reconsideration, private parties assert that broadcasters need additional relief if they are to consider "giving up" their second channel allotment. Specifically, they wish to continue analog operations on their remaining channel rather than broadcast in DTV by the Commission's May 2002 deadline. Today's decision accedes to that request. Broadcasters that enter private agreements to vacate their second channel will be allowed to operate their lone channel in analog format until 2005 or beyond.

As I have noted throughout this proceeding, I am committed to preserving consumer access to free, over-the-air broadcasting. I therefore support this result as an improvement over the status quo that left viewers of these stations without broadcast service. I note, however, that this comes only at the expense of the Commission's stated goal of furthering the DTV transition.

If the majority demands across-the-board band clearing policies rather than case-by-case review, I believe that continued access to free over-the-air broadcasting must take precedence over facilitating the transition to DTV.

1    Triangle Publications, Inc., 37 FCC 307, 313 (1964), citing Hall v. FCC, 237 F.2d 567 (D.C. Cir. 1954).

2    Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions of Part 27 of the Commission's Rules, Third Report and Order, 16 FCC Rcd 2703, 2704 para. 1 (2001).