June 5, 2000

CONCURRING STATEMENT OF
COMMISSIONER MICHAEL K. POWELL


Re:  Applications for Consent to the Transfer of Control of Licenses and Section 214 
Authorizations from MediaOne Group, Inc., Transferor, to AT&T Corp., Transferee.

I support the Commission’s decision today to grant the transfer of licenses from 
MediaOne Group, Inc. to AT&T Corp.  I concur in the decision, however, because I am 
concerned about the manner in which our public interest authority is applied in the item.  
Generally, I support the application of our four-part public interest test in the context of 
large and complicated telephone mergers.  However, where rules comprehensively 
embody our goals and fulfill the public interest standard without rote application of the 
four factors, I believe that simply applying the rule is a better approach.  It is the 
approach we took recently in our decision to approve the CBS/Viacom  merger, and I 
believe it should have been followed here. 

The Communications Act states that authorizations made by the Commission 
must be made upon a finding that the public interest, convenience and necessity would be 
served.   In some circumstances, the Commission has extrapolated this standard into a 
four-part public interest test.   To my mind, the across-the-board application of this four-
part test threatens the benefits that come from clear and concise rules of government.  It 
is a constant mantra of this Agency that the public and industry benefit from clear and 
specific rules and regulations.  For example, we bemoan rule by waiver and strive to 
make our rules the final arbiter of issues presented to the Commission.  This was an 
important goal of ours in revising the cable horizontal ownership rules last October,  as 
well as our broadcast ownership rules in August.   I commend this approach and remain 
committed to it.

I would argue, however, that importation of the four-part public interest test as an 
overlay to the application of specific rules that already address identified harms makes 
the rules less clear in a way that is detrimental to the public interest.  In cable and 
broadcast regulation, for example, we have an extensive and comprehensive set of 
structural rules whose goal is the redress of myriad harms to the public interest.  As the 
industry prepares to comply with these extensive rules, and structure business decisions 
around them, they deserve the benefit of certainty as to how these rules are going to be 
applied.  The public deserves the benefits of knowing the ground rules we will use to 
evaluate mergers as well.  

Rote application of the test implies that even if you were to comply with the rules 
specifically designed to address the harms at issue, we may still find that the activity 
proposed would “frustrate or impair the Commission’s implementation or enforcement of 
the Communications Act, or would interfere with the objectives of the Communications 
Act or other statutes.”  Such an approach, I believe, subsumes the rules and puts too 
much weight on our more ambiguous “public interest” authority.  That authority is meant 
to complement, not override, existing rules.  In addition, it adds a layer of uncertainty that 
makes the application of even the clearest of our rules a vague and ambiguous process.  
In circumstances where we have a rule that addresses issues raised by a merger, I would 
apply the rule and find that the public interest is satisfied.   

As a result, I concur in today’s decision.

  In the Matter of the Applications of Shareholders of CBS Corporation, and Viacom, Inc., For Transfer of 
Control of CBS Corporation and Certain Subsidiaries, Licensees of KCBS-TV, Los Angeles, CA, et al., 15 
FCC Rcd 8230 (2000).    

  See, e.g., 47 U.S.C. Sections 214(a), 310(d).

  According to that test, the Commission will evaluate whether an applicant has met its burden of proof that 
the transfer will advance the public interest by considering the following factors:

1) 	Whether the transaction would result in a violation of the Communications Act or any 
other applicable statutory provision;
2) Whether the transaction would result in a violation of Commission rules;
3) Whether the transaction would substantially frustrate or impair the Commission’s 
implementation or enforcement of the Communications Act, or would interfere with the 
objectives of the Communications Act or other statutes; and
4) Whether the merger promises to yield affirmative public interest benefits.


  Implementation of Section 11 of the Cable Television Consumer Protection and Competition Act of 1992: 
Horizontal Ownership Limits, 14 FCC Rcd 19098 (1999).  

  Review of the Commission’s Regulations Governing Television Broadcasting; Television Satellite Stations 
Review of Policies and Rules, 14 FCC Rcd 12903 (1999).