| In the Matter of 1998 Biennial Regulatory Review - Spectrum Aggregation Limits for Wireless Telecommunications Carriers, WT Docket No. 98-205, GN Docket No. 93-252, Report and Order |
This Commission scarcely adopts an order on wireless matters these days that doesn't tout the remarkable growth of competition in this nation's wireless markets. Today's Report and Order is no exception. (1) Yet today's decision -- to leave largely intact several provisions of our CMRS regulatory framework -- runs the risk of paying mere lip service to these significant competitive trends. While parts of the Report and Order are modest steps in the right direction, and for that reason I support them, I must also dissent because I believe much more significant regulatory relaxation is justified.
Evidence supporting the increasingly bright CMRS competitive landscape continues to accumulate. (2) Yet, in today's decision, the Commission perpetuates largely unchanged its 45 MHz CMRS spectrum cap and cellular cross interest rules. These provisions have as their purported goals the promotion and protection of competition, and the prevention of undue concentration of CMRS spectrum. In my view, however, the facts and the data simply do not support the retention of these rules. I would have preferred that we simply eliminate them. Competition in the wireless sector is flourishing, and I continue to have great faith in the Department of Justice's ability to root out and protect consumers from anticompetitive behavior should it arise.
I share Commissioner Powell's view, as expressed in his separate statement in this proceeding, that there are several parts of this item that are worthy of support. First, today's action raises the cap in rural areas to 55 MHz, which should help accelerate the spread of wireless innovation to these areas. (3) Second, the Commission makes explicit the availability of waivers of the spectrum cap where carriers can demonstrate that the cap is seriously impeding their ability to roll out advanced services, including 3G services.
Finally, I welcome the commitment that we make today to review the spectrum cap and cellular cross interest rules as part of our year 2000 biennial regulatory review, under Section 11 of the Communications Act, as amended. (4) At the same time, however, I must continue to point out that the Commission's 1998 biennial review (of which this order is a part) was not as thorough as I believe it should have been. (5) I look forward to working with my colleagues on the Commission to ensure that our year 2000 biennial review is as thorough and effective in eliminating unnecessary regulation as Congress intended when it crafted Section 11.
1 As today's order acknowledges, CMRS "prices are falling, usage is expanding, and service options are growing. In some cities, as many as seven independent facilities-based providers are now competing for business in mobile voice markets." Report and Order at ¶ 23.
2 See, e.g., Implementation of Section 6002(b) of the Omnibus Reconciliation Act of 1993 - Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, Fourth Report, FCC 99-136 (rel. June 24, 1999) at 63 (noting that the mobile telephony market continues to make "steady competitive progress," and highlighting the results of one study showing that the average price per minute of mobile telephone service has declined over 40% between the end of 1995 and the end of 1998).
3 I would, however, note the irony that we have chosen to relax our rules in rural areas - which generally have not benefited from the entry of additional competitors to the two cellular incumbents - while other areas of the country that have benefited from entry by PCS and SMR providers remain subject to the rule. Better to raise the cap to 55 MHz in all areas, or better still eliminate it altogether.
4 47 U.S.C. § 161 (a).
5 See my report, Implementation of Section 11 by the Federal Communications Commission (Dec. 21, 1998), which can be found on the FCC web site at http://www.fcc.gov/commissioners/furchtgott-roth/reports/sect11.html.