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Approving in Part, Dissenting in Part

Re: Assessment and Collection of Regulatory Fees for Fiscal Year 2000, MD Docket No. 00-58 (rel. July 10, 2000)

I generally support today's item. However, two aspects of the Order particularly concern me. First, I am troubled by yearly increases in fees that do not appear tied to any corresponding increase in the services provided to these licensees by the Commission. Congress requires that the Commission collect $185, 754, 000 this year to cover the costs of regulation and services.(1) Implicitly, this amount is "reasonably related to the benefits provided to the payor of the fee by the Commission's activities."(2) Over the past 6 years, however, these regulatory fees have increased over 200% and now cover 88.5% of the Commission's operating budget. It is hard to imagine that these increases reflect corresponding increases in Commission services.

These immense sums are not true "fees," but instead are more accurately described as taxes. Ordinarily, administrative fees are distinguishable from taxes in that the payor of fees receives a benefit in return. Conversely, taxes "confer[] no special benefit on the payee," rather, they are "intended to raise general revenue" or are "imposed for some public purpose." (3) At this point, our regulatory fees cover nearly 90% of the FCC's total operating budget. It is difficult to contend that the payors of these fees account for 90% of the FCC's costs. "Fees" should not be used as a back door to impose tax-like obligations on licensees.

My second concern is the assessment of fees upon Comsat for the Intelsat satellite system. This order purports to find Comsat liable for certain of these fees. The order contends that Comsat is liable under the fee category, "space station[s] (per operational station in geosynchronous orbit) (47 CFR Part 25)." (4) Comsat satellites are not, however, and never have been regulated or licensed under Part 25. The majority contends that the parenthetical reference to Part 25 following the fee is "essentially clerical" and "does not reflect a substantive limitation."(5) Needless to say, I am troubled by this characterization, particularly since the other parentheticals do not seem designed to merely "call attention to" certain "relevant" portions of our rules. In fact, other parentheticals regarding this fee category seem quite directive: "per operational station in geosynchronous orbit." I do not believe we possess the authority to interpret away that limitation to impose the fee based on some other calculus. I fear that imposition of the fee on non-part 25 systems leads us down that dangerous road.

The Commission does possess clear authority to amend the Schedule of Regulatory Fees.(6) Congress mandates that in "making such amendments, the Commission shall add, delete or reclassify services in the Schedule to reflect additions, deletions, or changes in the nature of its services as a consequence of Commission rulemaking proceedings or changes in law."(7) However, just as we failed to follow this obligation in the original Comsat "Signatory Fee" proceeding,(8) here too the Commission has not undertaken a proceeding to formally amend the fee schedule based on a "rulemaking proceedings or changes in law."(9) I do not believe we should interpret away such limitations, rather the FCC is obligated to implement the statutory fee schedule as written or formally change it, not merely read purportedly inconvenient limitations out of the statute.(10)

For the foregoing reasons, I respectfully dissent.

1    See Public Law 105-277 and 47 U.S.C. 159(a)(2).

2     47 U.S.C. 159(a)(1)(A).

3     Thomas v. Network Solutions, 2 F.Supp.2d. 22 (D.C. 1998).

4     See 47 U.S.C. 159(g). Imposition of fees on Comsat has already endured a troubled history. See Panamsat Corp. v. FCC, 198 F.3d 890 (D.C. Cir. 1999); Comsat Corp. v. FCC, 114 F.3d 223 (D.C. Cir. 1997).

5     Order at 22. Indeed, such an interpretation would render the parenthetical "mere surplusage" - contrary to established rules of statutory construction. See Mail Order Ass'n of America v. USPS, 986 F.2d 509 (D.C. Cir. 1993).

6    See id. 159(b)(3).

7     Id.

8    See Comsat Corp. v. FCC, 114 F.3d 223 (D.C. Cir. 1997) (holding that the Commission cannot make an amendment to the fee schedule unless pursuant to a rulemaking or change in the law).

9    In light of the longstanding nature of the Comsat service and the existing fee category structure, it is not clear that there has been the requisite "additions, deletions, or changes in the nature of its services." See 47 U.S.C. 159(b)(3).

10    The Order's interpretation seems more like a rewrite. See Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 1276 (1996) (Stating that the Department's "treatment of this statute is not an interpretation but a rewrite.").