January 28, 1999

Re:	Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, MM Docket No. 99-25.

I am not opposed to the creation of a low power radio service. Whatever new service can be provided within the range of existing interference regulations would be something worth considering. I do not believe that we should create new stations at the expense of current interference protection standards, however. Were the NPRM limited to consideration of service based on the maintenance of the interference rules now set forth in our regulations, I could thus have supported its issuance.

But the NPRM is not so limited. As the appendix shows, under existing interference rules the Commission can authorize so few new stations that the results would hardly warrant the effort. In order to create any substantial amount of new service, protection standards have to be loosened so far as to eliminate third and even second adjacent channel safeguards. This is a severe incursion on the rights of current licenseholders, as well as on the value of their licenses, which will be drastically undercut in the market if these proposals are adopted. This proposal also potentially impairs the ability of current licensees to serve their listeners, who must not be forgotten; while new people may be able to broadcast, others may lose their ability to receive and listen to existing stations due to interference. It especially troubles me that the Commission has made no effort to assess, much less quantify, the effect on existing stations of eliminating these safeguards. In my opinion, weighing the "cons" of the proposal -- namely, the negative effects on existing stations and their audiences -- in addition to considering its "pros" is essential to the decision whether to move forward with these petitions for rulemaking.

Even if the second and third adjacent channel protections were wholly eliminated, however, very little new service would be created in the major urban markets at which this proposal is in significant part aimed. See supra at para. 1 ("We believe these new LPFM stations would provide a low-cost means of serving urban communities and neighborhoods. . . .). For instance, in New York city, there would be no LP1000 stations and no LP100 stations, and in Los Angeles there will be only one LP1000 station, no LP100 stations with translator protections and six LP100 stations with unprotected translators. See Appendix D. In addition to their small number, these services will be relatively unavailable to mobile audiences due to their low wattage.

Furthermore, while many proponents of this rulemaking see it as a means of increasing broadcast ownership by minorities and women, there is in all likelihood no constitutionally sound way to assure such a result. There is simply no way that the Commission can say that, if a first-come, first-served rule is adopted, these licenses will not be awarded to whoever applies for them first or that, in the case of mutually exclusive applications, these licenses will not go to the highest bidder.

Having thus proposed the creation of these new stations, the Commission then concludes that it should impose "strict local and cross- ownership restrictions" on them. Supra at para. 57. If it did so, the Commission would create a gross inconsistency with the more liberal ownership limits under section 202(b) of the Telecommunications Act of 1996. Nothing in section 202(b) suggests that it was not meant to apply prospectively (as most statutes are) to any radio stations that might come into being after the Act, as the NPRM suggests. And, on a practical level, these ownership limits would help to ensure that no one with any actual experience in broadcasting could actively participate in these new stations. By dint of regulation, then, these stations may be pushed toward second-class performance and quality levels.

The creation of low power radio by elimination or modification of current interference rules may also have a similar effect on the FM radio band itself by hindering the development of new, advanced services such as in-band, on-channel digital radio. As the NPRM notes, plans for the delivery of this service have been based on current interference standards, and it is unclear whether these plans can be successfully modified should those standards change. While the rest of broadcasting (indeed the entire communications industry) moves toward the advantages of digital technology, this contemplated FCC policy may make it harder for the FM radio band to keep up.

Moreover, "community participation and the proliferation of local voices," supra at para. 2, can be achieved through a variety of ways other than the creation of microradio. People can communicate with others by obtaining extant commercial or noncommercial licenses, the purchase of air time on broadcast properties, leased access and/or PEG cable schemes, amateur radio, e-mail, internet home pages, bulletins and flyers, and even plain old-fashioned speech. The notion that a message must be broadcast over radio spectrum before its speaker has a "voice" overlooks the realities of modern life. Indeed, as time goes on, broadcasting has faced increasing competition, becoming less and less powerful a medium. It is no secret that the television broadcast networks are attempting to find innovative ways to deal with decreasing viewership in the face of cable, DBS, and other video delivery and entertainment systems that compete for the public's attention.

And, of course, Commission enforcement of rules and regulations applicable to the new stations will be an administrative drain and involve the Commission in micromangement of the smallest of operations.

Thus, this proposal does not do much to advance its supposed goals. What minimal furtherance of those goals it would achieve comes at great cost to current licenseholders and listeners. Good -- arguably better, even -- alternatives for the dissemination of messages in America certainly exist. And the administrative burdens on the Commission will likely be great. Accordingly, I do not think this proposal represents an efficient use of radio spectrum.

In addition, I do not view concern about the effects of consolidation in the radio industry as the result of the 1996 Telecommunications Act as an appropriate motivation for the creation of low power radio stations. See supra at para. 10 ("[W]e are concerned that consolidation may have a significant impact on small broadcasters and new entrants into the radio broadcasting business by driving up station prices, thereby exacerbating the difficulty of entering the broadcast industry and of surviving as an independent operator."). These are, at bottom, arguments against consolidation. Congress, however, made the clear policy choice to lift national ownership limits. Whatever the results of that choice, they are the function of Congress' elected course; Congress surely realized that one of the possible results of lifting ownership limits would be that any pent-up demand for properties that would be released into the market might raise prices.

Finally, I have procedural concerns about the Commission's use of its resources in relation to this proceeding. Specifically, I wonder whether the "substantial interest in, and public support for," supra at para. 1, this rulemaking, relied upon so heavily in this item, was not partly generated by the Commission itself with its web site page for low power radio.⁽¹⁾ A brief review of this page reveals that -- whatever one might think about low-power on the merits -- the summary provided there was simply not an objective assessment of the rulemaking and the issues that it raises. For example, the summary described the possible advantages of low power radio but made no mention of the potential drawbacks. The summary also urged readers to file comments in order to "successful[ly]" implement the proposals.

The provision of information about our activities is an important and laudable goal. In meeting this goal, however, we must be careful not to slant our presentation toward one point of view, lest the Commission become an advocate instead of a neutral decisionmaker. Of all agencies, the FCC should not be attempting to shape and color public opinion on matters before us by the dissemination of unbalanced information. I believe that, if we are to enjoy the appearance of fairness in the rulemaking process, we should not use government funds to promote a particular result prior to even the issuance of an NPRM. Not only does such promotion damage our impartiality, but it puts private interest groups on the other side of the issue in the position of having to expend resources to counter not just the efforts of opposing parties but of the agency as well.

In short, given the potential harmful effects on current licensees and their listeners, the limited benefits of creating a low power radio service, the burdensome regulations placed on the new stations, the new enforcement duties for the Commission, and the availability of alternatives for communication, I do not believe that the pursuit of this proposal comports with our statutory duty to" make available . . a rapid, efficient, Nation-wide and world-wide wire and radio communication service." 47 USC section 151 (emphasis added).