January 11, 2001

Because the proposed transfer of radio licenses from Time Warner to the new, combined entity does not raise any compliance issues under any relevant statutory provisions or our numerous regulations, I find the transfer clearly to be in the public interest. I therefore concur in the grant of the license transfer applications.

I cannot subscribe to any of the other aspects of this Order, however. My general views on the proper scope of the Federal Communications Commission's role in the mergers of communications entities are well documented. ⁽¹⁾

To summarize, I believe that our job under the plain language of the Communications Act is to approve the transfer of radio licenses, not to pass on mergers. The approval of such transfers should depend upon compliance with extant regulations and applicable statutory provisions, not open-ended analysis of the entities' businesses.

Unfortunately, the Commission in this Order continues to engage in just this sort of "merger" review. The overwhelming bulk of this document has little, if anything, to do with the proposed transferee's use of the CARS licenses that are the jurisdictional object of this proceeding. Instead, the Order focuses on the transferee's various lines of internet business, including instant messaging and interactive television. And it analyzes those business activities to see whether the entities' future conduct might "impair or frustrate the objectives" of the Act. At the end of the day, the Commission has speculated about as yet undeveloped facts that are only tangentially related to license usage, and then applied to that conjecture a standard of review that is virtually unknowable ex ante. As I have said before,⁽²⁾ this approach is fundamentally flawed.

I am also troubled by a particular aspect of this proceeding: the coordination of efforts by this agency and the Federal Trade Commission (FTC). To be sure, federal agencies may -- indeed, sometimes should -- communicate with each other about official government business. What it should not do, however, is to engage in such communication in a way that is not transparent and predictable.

Apparently, the FCC and the FTC shared deliberative documents with each other -- presumably for the purpose of coordinating their efforts -- throughout the course of each agencies' proceedings. This interaction was not made public, which makes it difficult for interested commenters and even the parties themselves to track important developments in the decisionmaking process. Furthermore, at the outset of this adjudication, the applicants had no notice of the extent or nature of the intergovernmental coordination that ultimately ensued. That is because we lack consistent, predictable procedures for working with other agencies on mergers; such work is done on a purely ad hoc basis, depending on the personal inclination of individual officials. The approval process would be more fair to the applicants, and also more efficient for the FCC staff, if the scope of the working relationships between this agency and other relevant entities were defined in advance.

Of course, if this Commission had not tied its review to that of the FTC's in the first place, no such coordination would ever have been necessary. That is to say, if our review of the license transfer applications were limited to compliance with extant FCC regulations and the Communications Act, there would be no problem of duplication with the FTC, since it has no jurisdiction over those provisions of the law. We would be free to process applications in a timely fashion, fully independent of any action taken by the FTC.

For the foregoing reasons, I concur in the grant of the applications, but dissent from the remainder of the Order, including the conditions imposed upon its approval.

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For more information regarding this release please contact Bryan Tramont, Press Liaison, Office of Commissioner Furchtgott-Roth at 202-418-2000.

2. See supra note 1.