In Re:

Satellite Delivery of Network Signals to Unserved Households for Purposes of the Satellite Home Viewer Act

I commend the Cable Services Bureau, the Office of Engineering and Technology, the Mass Media Bureau, and the International Bureau for their fine work on this Report & Order. Unfortunately, I cannot join Part III, which makes legislative recommendations to Congress regarding the delivery of network signals via satellite.

As I have previously explained, I do not believe that, absent an express request from Congress, making recommendations about how the law should be changed is an appropriate function for the Federal Communications Commission. See, e.g, 1997 Report on the Status of Competition, 13 FCC Rcd 1034 (1998) (separate statement of Commissioner Harold Furchtgott-Roth). The Commission is bound to take the law as Congress makes it and to implement the law objectively; yet when we criticize extant statutes, enacted by Congress and signed into law by the President, we draw that objectivity into doubt. Moreover, as a creature of Congress' delegated authority, the Commission takes it direction from that body, not the other way around.

Even if it were appropriate for the agency to suggest to Congress how it ought to legislate (or how it has erred by enacting certain legislation), such suggestions could plausibly involve, at most, communications law and policy. This item, however, ventures with its recommendations boldly into copyright law, an area in which the Commission has no expertise or authority, as the item itself implicitly acknowledges. See supra at para. 28. We simply do not know where, and on what, we tread when we recommend a particular change in intellectual property rights. We simply do not fully understand what problems such a change might trigger in that body of law. If the Copyright Office made recommendations to Congress on how to write communications statutes, I do not think anyone would give them much weight. It seems to me that the converse is equally true.

For these reasons, I would not have recommended legislative action to Congress in this item, nor would I have indicated that existing statutes are unfair or unwise.