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June 22, 2000

Dissenting in Part

Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions of Part 27 of the Commission's Rules, WT Docket No. 99-168

I respectfully dissent from the decision to adopt a strong presumption in favor of granting requests to clear existing broadcasters from the 700 MHz band. In its eagerness to make way for new wireless services in this band, the majority dismisses this agency's long-held commitment to the American public's continued access to free, over-the-air broadcast services. I would have preferred to reaffirm our policy to review such requests on a case- by-case basis.

As I have noted in the past, the 700 MHz spectrum offers unlimited potential for exciting, next generation mobile services and fixed high-speed Internet access that can be deployed ubiquitously.1 Moreover, this band offers vital new spectrum dedicated to public safety needs. At the same time, however, I am firmly committed to the fundamental policy of continued access to free, over-the-air broadcast services. Today, about 30 percent of all Americans continue to obtain television programming via free, over-the-air broadcast services. These services provide intrinsic value by ensuring that all members of the community have access to a multiplicity of broadcast outlets.

Recognizing these two interests, I supported the decision in the First Report and Order to review on a case-by-case basis voluntary requests that would clear incumbent broadcasters from the 700 MHz band and allow new wireless licensees to deploy service.2 In reviewing loss of broadcast service cases, the Commission has long held that "once in operation, a station assumes an obligation to maintain service to its viewing audience, and the withdrawal or downgrading of existing service is justifiable only if offsetting factors are shown which establish that the public generally will be benefited."3 The D.C. Circuit has sustained this policy on review, finding that losses in broadcast service are prima facie inconsistent with the public interest, and that the grant of requests resulting in such losses must be supported by a strong showing of countervailing factors.4 In the First Report and Order, we committed to examine the recovery of spectrum for new wireless uses in light of the loss of broadcast service to the community.

Today's Order, however, stands Commission policy and judicial precedent on its head. The majority concludes that, where private parties agree, deployment of new wireless services should supplant free, over-the-air broadcast service in most - if not all - instances. The majority adopts a presumption that, absent limited circumstances, favors the grant of requests to turn off existing analog stations. This broad-based approach does not adequately consider the impact of the loss of service on the incumbent licensee's broadcast community.

To justify this reversal, the majority asserts that this approach furthers the statutory scheme, facilitates the DTV transition, and results in only limited and temporary loss of service. I am not persuaded.

The Statutory Scheme. While the DTV provisions do not prohibit our review of voluntary agreements to clear a broadcaster's analog spectrum, I do not believe that Congress endorsed a legislative purpose of "expeditiously recovering this spectrum,"5 as the majority contends. Nor do I believe that Congress envisioned a Commission policy to facilitate early recovery of the broadcasters' spectrum and the resulting loss in free, over-the-air service on channels 59-69.

In fact, Congress did not speak at all about early recovery of this spectrum. To the contrary, it provided that licensees may make a showing to continue their analog broadcasting well beyond December 31, 2006.6 In the accompanying Conference Report, Congress noted it did so "to ensure that a significant number of consumers in any given market are not left behind without broadcast television service as of January 1, 2007."7 Moreover, although Congress directed the assignment of the 700 MHz band prior to the return of the spectrum and then further accelerated our auction process, there is no basis to conclude that these actions reflected a desire for the Commission to recover the spectrum quickly.8

DTV Transition. Although the majority suggests that these voluntary agreements will facilitate the DTV transition, the Order does not require a licensee to have its digital signal in operation in exchange for turning off its analog channel. It merely "expects" that broadcasters will use the revenue derived from voluntary agreements to construct and operate digital television stations.9 As a result, a licensee may return its analog channel and not broadcast at all until its digital construction requirements are triggered in May 2002.10 Alternatively, a broadcaster may strike a deal to turn in its analog channel in exchange for DTV station costs as the majority suggests, but then decide to go dark.

Temporary Loss of Service. The Order makes the broad finding that "some temporary loss of over-the-air service" is permissible to provide broadcasters with the resources to transition to DTV operations and to enable new wireless services.11 The majority, however, does not define "temporary," and I fear that today's viewers will lose access to this programming for a very long time. The loss of a licensee's analog service, moreover, is not temporary. For today's viewers, it is the only free, over-the-air broadcast service they access and its loss is a permanent one.

I am also concerned that the majority appears content to defer to private parties those judgments that should fall under our spectrum management obligations. The majority notes that "we will be inclined to grant regulatory requests arising from such private commercial arrangements, provided the requests do not, on balance, have adverse public policy consequences."12 The Order relies on the views of incumbent broadcasters "with a direct interest in strengthening their transition to DTV," dismissing the impact on viewers today - and for years to come - as "limited and temporary losses in service."13 Given our long-held precedent regarding the value to the public of free, over-the-air broadcast services, I believe that we should more seriously consider the loss of service to today's viewers.

As a result, I cannot support the majority's decision to alter the analysis of broadcaster requests to turn in their analog spectrum that we established in the 700 MHz First Report and Order.

In addition, I have serious misgivings regarding the Further Notice. The three-way relocation and secondary auction band clearing proposals raise further issues about how the newly adopted presumption policy would apply in a multi-relocation context.14

Further, I strongly oppose any possibility of mandatory relocation of an incumbent broadcaster.15

Finally, in this age of ever-growing demand for spectrum, I fear that the majority's decision signals a diminishing regard for the public value of free, over-the-air broadcast services. While I fully support the promise of new wireless services, I would have preferred to review requests on a case-by-case basis. I have little doubt that the majority's presumption and the proposals in the Further Notice will lead to clearing channels 52-58 next. As we look to the future, my deepest concern is that today's action augurs a fundamental shift away from our commitment to the value that broadcasting serves for all Americans.

1. See Separate Statement of Commissioner Gloria Tristani, Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, Second Report and Order, FCC 00-90 (rel. Mar. 9, 2000).

2. See Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, First Report and Order, 15 FCC Rcd 476, 534 at para. 145 (2000).

3. Triangle Publications, Inc., 37 FCC 307, 313 (1964), citing Hall v. FCC, 237 F.2d 567 (D.C. Cir. 1954).

4. See West Michigan Telecasters, Inc. v. FCC, 460 F.2d 883 (D.C. Cir. 1972).

5. Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, WT Docket No. 99- 168 (700 MHz MO&O) at para. 52; see also id. at para. 55 (". . . several statutory purposes involved here are best furthered by enabling voluntary agreements that result in the expeditious and efficient recovery of these frequencies for the legislatively specified commercial and public safety purposes.").

6. 47 U.S.C. 309(j)(14)(B).

7. H.R. Conf. Rep. No. 105-2015 (1997).

8. See, e.g,, Letter from Pete V. Domenici, Chairman, Committee on the Budget, U.S. Senate, to William E. Kennard, Chairman, FCC (dated May 5, 2000) ("The purpose of this acceleration was to provide an `offset' so that fiscal year 2000 appropriations would not exceed the spending limits established in the law. . . . My motivation was purely budgetary.").

9. See, e.g., 700 MHz MO&O at para. 49 ("We expect that incumbents will enter into such agreements only when they determine that the long term viability of their service will be improved thereby.").

10. See Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service, Fifth Report and Order, 12 FCC Rcd 12809, 12841 at para. 76 (1997) (requiring those commercial broadcasters that have not yet constructed DTV facilities to do so by May 1, 2002).

11. 700 MHz MO&O at para. 59.

12. Id. at para. 55.

13. Id.

14. See id. at paras. 98-99.

15. See id. at para. 100 (seeking comment on industry proposals).