DISSENTING STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

Re: Amendment of Part 2 of the Commission's Rules to Allocate the Band 33-36 GHz to the Fixed-Satellite Service for Federal Government Use, Memorandum Opinion and Order (rel. January 24, 2001).

The national security exception to the Administrative Procedure Act is just that -- an exception to the rule. ⁽¹⁾ That rule forms the foundation of our national administrative law framework. It guarantees the right of American citizens to participate in government decision-making. Indeed, it guarantees the fundamental right to be heard. The exceptions to the APA should be invoked only in the most extraordinary of circumstances. This case does not pass that test. While the national security uses of this band are clearly important, I see no reason why NTIA's January 12, 2001 letter could not have been put out for a brief public comment period. ⁽²⁾ The corresponding short delay would still have allowed the Commission to complete its processes within weeks of receipt of the letter and still allowed for the public to have its say. I am particularly sensitive to this issue because the Commission has encountered substantial difficulties in the past by too readily invoking this exemption. ⁽³⁾ In the end, we may have still made the requested change to the National Table of Frequency Allocations. But that is not really the point. The point is that our public interest mandate is difficult to fulfill without the public.