DISSENTING STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

I respectfully dissent from the Commission's decision to deny Southern's waiver request. Under 47 C.F.R. §1.925 (b)(3), the Commission may grant a waiver if the underlying purpose of the rule would not be served by application in the present case and the waiver would be in the public interest. Here, in order to make its installment payment, Southern requested a two-day waiver of the Commission's installment payment rule. ⁽¹⁾ I would have granted the waiver. There is no doubt that Southern should have had a back up plan to allow for timely payment of these funds. There is also no doubt that failure to make a timely payment results in the automatic cancellation of a license under our rules. Nonetheless I fear that ease of administration and litigation concerns have trumped the public interest and equity for Southern in this case.

Although I have never supported the Commission's role as a lender in the C Block, the Commissioner as a creditor and a regulator understandably requires timely payment. In this regard, the Commission's rules allow for a 180-day grace period for license payment with certain penalties. Here Southern unfortunately stretched that time to its very limit - and was unable to make its payment on the 180^th day.

Nonetheless, Southern did file a timely waiver request on the 180^th day. In addition, it appears that Southern did have the funds available to make the payment. Southern subsequently placed those funds and the succeeding payment in escrow. I believe the waiver request filed within the grace period and evidence of an immediate ability to pay argue strongly for a waiver in this case. The underlying purpose of the payment rule is to ensure that responsible licensees make regular and prompt payment. Here there is no evidence that Southern was attempting to shirk that responsibility - to the contrary, Southern's every effort from the cancellation date forward seemed to indicate a substantial interest in paying the sums due.

I also believe that a waiver is in the public interest. Had we quickly granted the original two-day waiver request when it was filed twenty months ago, Southern would be well on its way to providing service in the underserved Cleveland TN BTA. Instead, the license has remained fallow for twenty additional months - and will only be re-auctioned this week - after which, up to another five years will pass before any service may be provided. In my view, I will gladly trade a brief delay in payment for two years of additional service.

Finally I understand that a case-by-case evaluation of waiver requests is a difficult and time-consuming task. I also understand that some believe waivers of this kind would undermine the FCC's litigation position in various cases. However appealing bright line rules may be for administrative efficiency and litigation strategy, I do not believe those interests should prevent us from looking carefully at the individual equities of a given case. Here Southern has not disputed its obligation. Southern filed a waiver request within the grace period. Southern had the resources to pay and does not appear to have been gaming our rules. Southern was in the best position to provide prompt service to the public. Thus, under these circumstances, I believe granting Southern's waiver would have served the public interest.