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January 20, 2000

In the Matter of Creation of Low Power Radio Service, MM Docket No. 99-25
Report & Order
Dissenting Statement of Commissioner Harold W. Furchtgott-Roth

I am relieved that the Commission has not demolished first- and second-adjacent channel protections in this Report & Order. But I can not support, for the reasons set forth below, even the elimination of third-adjacent channel protections. Accordingly, I dissent from these new rules establishing "low power" radio licenses.

I dissented from the Notice of Proposed Rulemaking in this proceeding. See Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, MM Docket No. 99-25 (Jan. 28, 1999). I did so because the Notice did not simply propose the creation of a new service within existing interference protection standards but went far beyond that, suggesting the elimination of third-,second- and even first-adjacent channel protections. As I explained, such action harms existing license holders and their listeners, while producing very little in the way of countervailing benefits. See generally Dissenting Statement of Commissioner Harold W. Furchtgott-Roth, Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, 14 FCC Rcd 2471 (1999).

In the intervening twelve months, we have received many comments on this proposal, as well as engineering studies on the level of interference posed by the potential stations. Unfortunately, this entire proceeding has been marked by a rush to judgment. The Commission has simply not taken the time to do the right technical studies, the right way.

Even without studying the engineering studies in the record, we can be sure of one thing. As Commissioner Quello once noted, "it is axiomatic that for each new service introduced, interference to existing service is also introduced." Dissenting Statement of Commissioner James H. Quello, Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM Broadcast Assignments, 48 FR 29486, 29512 (1983) (BC Docket No. 80-90). This is true even for 100 watt stations dropped by eliminating "only" third adjacent channel protections. There are real costs - to existing stations, their listeners, and to public perception of the quality of FM radio as a media service -- here that the Commission has not even attempted to quantify.

But let's consider what the Commission today has actually achieved in terms of benefits to place on the other side of the ledger. According to the NPRM in this proceeding, elimination of third adjacent channel protections for 100 watt stations will allow for the creation of one such station - in Houston, Texas -- in the top five American cities. No such stations will be created in New York, Los Angeles, Chicago, Philadelphia, San Diego, Dallas, San Francisco, Washington, Charlotte, or Miami. So much for the goal of creating low power stations to serve urban communities; there will be precious few new licensees in urban markets.

To the contrary, the bulk of new licensees will be smaller markets. In many of these areas, full power stations likely could already be dropped in without changing third-adjacent channel standards at all. (At least, there is no indication of an effort on the part of the Commission even to consider such an alternative approach.) Given that there is little existing demand for additional full-power stations in these markets, there is no evidence of commercial viability. Indeed, the evidence suggests that such stations are not capable of existence as going concerns.

Perhaps there is a demand for lower power noncommercial stations. Theoretically, however, any such actual demand could be met by the dispensation of licenses within our existing rules - i.e., by giving out 101 watt licenses consistent with the 100 watt minimum requirement. See 47 C.F.R. section 73.211(a)(3).(1) Yet again, we receive few if any applications for 101 watt licenses, even in the noncommercial arena. Similarly, if somebody really wanted to operate a 50-watt station, they might file a request for waiver of the 100-watt minimum rule. As far as I can tell, though, no such waiver has ever been filed, again suggesting a lack of any real demand for such licenses. In short, there is no evidence in the behavior of license applicants that suggests any pent-up demand for the stations in question.

The Commission has also made clear its intent to create these stations for the use of church groups. See Report & Order at para. 5. Since the relevant regulatory classification now is noncommercial educational ("NCE"), the Commission would seem bound to apply its recently adopted "future guidance" on the meaning of "educational" programming to these religious entities. (2) That guidance would narrow the scope of religious programming that qualifies as educational for purposes of a valid NCE designation. I wonder whether these groups are aware - and how they will feel when they learn - that the broadcast of religious services may not count towards the required amount of educational programming that they must air in order to retain their licenses. See In re Applications of WQED Pittsburgh and Cornerstone Television, Inc. MM No. 99-393 (rel. Dec. 29, 1999).(3) I also wonder whether they are aware that under that decision they might be required to serve the needs of the "entire"community, rather than their "small, local" group, Report & Order at para. 17. So much for the goal of creating low power stations for use by churches and church groups.

And will the newly recreated Equal Employment Opportunity rules apply to low power stations with 5 or more employees? See 47 CFR section 73.2080(a) (applying rules to "all licensees or permittees of commercially owned or noncommercially operated AM, FM, TV or international broadcast stations') (emphasis added). Presumably they must, just as, for instance, the political programming rules do. The required outreach and paperwork for EEO alone, not to mention all other regulations, may prove overwhelming for the operators of low-power radio stations. If these duties are taken seriously by operators and enforced by the Commission, low power operators will spend more time attempting to figure out what Title 47 of the Code of Federal Regulations requires of them than they will spend broadcasting.

The net result of the foregoing is that there is very little evidence - in the form of applications for, say, 101 watt stations or waivers of the 10-watt minimum - indicative of current market demand for the stations now being created. Layered on top of the apparently low state of demand for these licenses today are the many regulations to which the stations will be subject. Any current demand for 100 and 10 watt stations will only be dampened by these regulatory burdens.

In short, the Commission has, at the expense of existing service quality, created: a handful of new stations in primarily non-urban areas; stations that may not meet their licensing requirements if they air religious programming; stations that may well be unlistenable by fixed listeners due to interference received from higher power stations; a threat to the development of digital radio services; a heavy regulatory scheme, including cross-ownership, political programming rules, and EEO outreach duties, to govern these very small operators; and more enforcement and administration burdens for the Commission. This is not a wise balance of interests. I therefore dissent.

1. Notably, the rationale for the 100-watt minimum was efficiency in spectrum distribution. It was thought inefficient, unwise, and unmanageable to license radio stations at operating powers any less than this. See 33 Fed Reg 7574. Today's Order never comes to terms with the Commission's clear statements about the need for the 100-watt floor.

2. To be sure, the WQED Order involved television broadcast licenses, as opposed to radio broadcast licenses. But both sorts of licenses are categorized as "noncommercial educational." I can see no non-arbitrary way to limit the decision on the meaning of the term "educational" to the television context, however. There is nothing about the nature of the media at issue - television versus radio - that could justify the use of two different definitions of the substantive adjective "educational." Programming does not change its "educational" nature simply because it is received on a radio as opposed to a television.

3. See also http://www.fcc.gov/Bureaus/Mass_Media/Orders/1999/fcc99393.txt.