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Approving in Part, Dissenting in Part

Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-168 (rel. June 22, 2000)

I support efforts to provide additional regulatory certainty to new wireless entrants and existing broadcasters in the 700 MHz spectrum. I am all too aware of the uncertainty that often surrounds license transfers and modifications before this agency. To the extent today's item lends some predictability and transparency to that process, it is a step in the right direction. However, I want to be clear that our efforts should only be aimed at clearing away regulatory barriers to privately negotiated agreements, not at creating new regulatory structures that force one licensee's deals upon unwilling parties. In my view, it may or may not be efficient for new entrants and incumbents to negotiate an early transition to digital. Therefore, it is for the marketplace, not the Commission, to determine when and how these transactions occur.

As set forth above, I believe this item should only focus on removing regulatory barriers to private transactions. However, in many areas, the Commission seems intent on creating a potential host of new rules to intervene in the marketplace. First, the Commission seeks comment on its proposal to run an FCC auction of options to relocate incumbent broadcasters. As a threshold matter, I have serious doubts about our statutory authority to run such an auction.1 We are not Sotheby's, available for hire to auction any communications-related items. Indeed, even with statutory authority, the rationale for FCC intervention is unclear in light of private parties' plans to conduct such auctions. The notion of government usurping a function currently performed by private parties should be an anathema to the Commission. Second, the notice also discusses cost sharing policies for new entrants seeking to benefit from the early clearing of spectrum. Once again, nothing in our rules forms a barrier to these agreements, therefore I see no basis for the Commission even to contemplate cost sharing here. In addition, such a mandatory cost sharing approach seems particularly unnecessary where there is a discrete number of parties involved in the underlying transactions. Unless and until there is reliable evidence of a market failure or some regulatory gaming, I believe the FCC should allow the market to function unfettered by regulatory intrusions.2

Ironically, at a time when the majority is seeking comment on the above new regulatory initiatives, the Commission continues to leave unresolved significant regulatory issues regarding signal degradation, the digital television transition, and the scope of must carry obligations.3 Rather than the incremental tinkering adopted for the purposes of this Order, I believe we have a duty to develop a comprehensive resolution of these important matters as soon as possible. Delay, coupled with incremental declarations aimed at advancing other policy goals, is no way to address the core legal issues inherent in the digital television transition.

Finally, I wish to emphasize that nothing in this Order should form the basis for a delay in the 700 MHz auction. As I have previously made clear, the Commission has no authority to exceed the statutory September 30,2000 deadline set by Congress.4 Unresolved issues in this proceeding cannot and should not form a pretext to further delay this auction under any circumstances.

For the foregoing reasons, I respectfully dissent in part.

1. See Service Rules For The 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-168, at 108; see also 47 U.S.C. 309.

2. In this regard, like my colleagues Commissioners Ness and Tristani, I strongly oppose any mandatory relocation of incumbent broadcasters.

3. See e.g. Pending Digital Must Carry Rulemaking, CS Docket No. 98-120.

4. See Separate Statement of Commissioner Harold Furchtgott-Roth in Auction of Licenses for the 747-762 And 777-792 MHz Bands Postponed Until September 6, 2000 - Report No. AUC-00-31-F (Auction No. 31) and Auction Of Licenses For The MHz Guard Bands Postponed Until September 6, 2000 - Report No. AUC-00-33-D (Auction No. 33) (Released May 2, 2000).