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March 16, 2001

Approving in Part, Dissenting in Part

Re: Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), GEN Docket No. 01-XXX

In 1997, the Commission adopted a comprehensive Table of Allotments for the introduction of Digital Television (DTV) and concluded that, while channel 60-69 spectrum could be recovered early, other reclaimed spectrum would only be recovered "at the end of the transition period." (1) Today, the Commission suggests that we alter course by proposing ways to promote early recovery of spectrum in channels 52-59.

My views expressed in the upper 700 MHz proceeding extend to this Notice. (2) I do not support a presumption that the public is better served by loss of existing television service than by delay in receiving new services. My convictions run even deeper here given the Commission's previous commitment to preserve the lower 700 MHz band for broadcast services until the end of the transition. I thus respectfully dissent from the band clearing proposals.

The 1997 DTV Table of Allotment decision was based on sound principles of spectrum management. The Commission could not locate all stations' DTV channel allotments within the "core" broadcast spectrum (currently channels 2-51), so it placed 165 DTV stations in channels 52-59 as a transitional measure pending final placement within the core. The Commission stated that "the public interest is best served by developing a Table of DTV Allotments that meets the DTV spectrum needs of broadcasters during the transition; facilitates the early recovery of spectrum from channels 60-69; and also facilitates the eventual recovery of [other] spectrum currently being used for analog broadcasting." (3) Consistent with this approach, pending applicants that were either displaced from the core or from channels 60-69 were later allowed to seek temporary refuge in this band as well.

Later in 1997, Congress mandated an auction of this spectrum by September 30, 2002. In doing so, however, Congress did not suggest that we encourage early recovery of the spectrum. To the contrary, although the Commission had just announced that reclaimed spectrum would be recovered at the end of the DTV transition, Congress proceeded to define the end of the transition as 2006 or beyond. (4)

With the auction date looming, however, the majority proposes policies to promote band clearing in channels 52-59. Unless Congress directs this agency otherwise, I do not believe we should change course. I support the DTV Table of Allotment and the spectrum transition plan adopted in 1997. The DTV transition should be guided by sound principles of spectrum management, not auction consequences.

In the end, these band clearing proposals may have little effect other than fueling false expectations of available spectrum. Today, roughly 100 NTSC and 165 DTV incumbents are in channels 52-59. These proposals alone are unlikely to clear substantial swaths of spectrum. Nonetheless, my commitment to free, over-the-air broadcast services and our DTV transition plan compel me to dissent from these proposals.

1    DTV 6th Report and Order, 12 FCC Rcd 14588, 14590 para. 1 (1997).

2    See Separate Statement of Commissioner Gloria Tristani, Service Rules for 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, Third Report and Order, WT Docket No. 99-168 (Jan. 19, 2001); Separate Statement of Commissioner Gloria Tristani, Service Rules for 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 (June 30, 2000).

3    DTV 6th Report and Order, 12 FCC Rcd at 14625, para. 76.

4    47 U.S.C. 309(j)(14).