**[STATEMENT OF COMMISSIONERS HAROLD FURCHTGOTT-ROTH AND GLORIA
TRISTANI, DISSENTING IN PART]{.underline}**

*In the Matter of Reexamination of the Comparative Standards for*

*Noncommercial Educational Applicants \-- MM Docket No. 95-31*

We would have found that Section 309(j)(2)(C) of the Communications Act
precludes us from using competitive bidding to award a broadcast license
to a noncommercial educational broadcast or public broadcast station to
operate on a commercial channel. We believe that Congress\' mandate is
clear: the Commission lacks authority to employ auctions to issue
licenses to such stations, regardless of whether they operate on a
reserved or on a commercial frequency. Since the statute is clear on its
face, we are obligated to give it effect.[^1]

The specific exemption to our competitive bidding authority in section
309(j)(2)(C) provides that such authority \"shall not apply to licenses
or construction permits issued by the Commission . . . for stations
described in section 397(6) of this title.\" Section 397(6), in turn,
defines the terms \"noncommercial educational broadcast station\" and
\"public broadcast station\" as \"a television or radio broadcast
station which . . . under the rules and regulations of the Commission .
. . is eligible to be licensed by the Commission as a noncommercial
educational radio or television broadcast station and which is owned and
operated by a public agency or nonprofit private foundation,
corporation, or association\" or \"is owned and operated by a
municipality and which transmits only noncommercial programs for
education purposes.\"

Nothing in section 309(j)(2)(C) limits its reach to licenses issued for
noncommercial and public broadcast stations *on reserved channels*. The
statute makes no distinction between licensees granted to section 397(6)
stations to operate on reserved spectrum and licensees granted to such
entities to operate on unreserved spectrum; the prohibition on the
licensing of these stations pursuant to auctions is, in this regard,
unqualified. The Commission simply has no competitive bidding authority
when it comes to licenses issued for stations described in Section
397(6).

Similarly, nothing in section 397(6) limits the definition of
noncommercial educational and public broadcast stations to those
operating on reserved channels. Rather, section 397(6) defines the
stations exempt from auctions under section 309(j)(2)(C) in terms of the
station\'s *eligibility* under Commission rules to be licensed as a
noncommercial educational or public broadcast station. Commission rules
do not require broadcast stations to operate only on reserved bands in
order to be eligible for status as a noncommercial educational or public
broadcast station.[^2] To the contrary, our rules specifically address
the situation in which noncommercial educational stations are licensed
to operate on unreserved channels.[^3]

Had Congress intended to limit the exemption for noncommercial
educational and public broadcasters from competitive bidding to cases in
which such broadcasters were applying for reserved frequencies, we
believe that Congress would have done so explicitly. Indeed, prior
versions of both the House and Senate bills expressly provided for an
auction exemption limited to \"channels reserved for noncommercial
use,\" but those limitations were eliminated prior to passage.[^4] Where
Congress deletes limiting language from a bill prior to enactment, it
may be presumed that the limitation was not intended.[^5] We would not
read this limitation back into the statute.

The majority's reasoning to the contrary is unpersuasive. Although the
majority tries to paint itself as caught between two "conflicting
statutory directives," para. 106 (juxtaposing sections 309(j)(1) &
(j)(3)(C) with section 309(j)(2)(C)), this characterization of section
309 is just not tenable. The statutory language is not in equilibrium,
leaving the Commission free to choose one side or the other, but clearly
weighs in favor of exempting NCEs from auctions across the board.

The directive in section 309(j)(1) to auction all mutually exclusive
applications, on which the majority places such reliance, is by its
clear terms subject to the exemptions set forth in the very next
subsection. That subsection, of course, includes the exemption for
noncommercial stations. *See* 309(j)(1) ("If . . . mutually exclusive
applications are accepted for any initial license or construction
permit, then, *except as provided in paragraph (2),* the Commission
shall grant the license or permit to a qualified applicant through a
system of competitive bidding. . . .). Section 309(j)(1) is simply not
an order to auction all mutually exclusive applications, as the majority
suggests, and cannot be relied upon as such. Furthermore, the directive
in section 309(3)(C) is simply to "seek to promote" -- not to accomplish
at all costs, and surely not where inconsistent with the actual
statutory scheme -- recovery of the value of spectrum made available for
commercial use.

On the other side of the scale, there is section 309(j)(2)(C), which
follows immediately the mandate to auction mutually exclusive
applications except in certain situations. It provides that one of those
situations is where "licenses or construction permits \[are\] issued by
the Commission for stations described in section 397(6) of the Act."
This exemption speaks *specifically* to the question of how to treat NCE
applicants in a mutually-exclusive application situation. Accordingly,
under the canon of construction that the specific governs the general,
*see, e.g*., *Morales v. Trans World Airlines, Inc.*, 504 U.S. 374,
384-385 (1992), we think it should trump whatever directives one might
find in sections 309(j)(1) and (2)(C). As explained above, however,
section 309(j)(1) is not an absolute mandate to auction all commercial
spectrum and the hortatory "seek to promote" language of section
(j)(C)(3) must give way to the mandatory language of the statutory
exemption for NCEs.

[^1]: *See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.*, 467 U.S. 837, 842-43 (1984).

[^2]: *See* 47 C.F.R. § 73.503.

[^3]: *See* 47 C.F.R. § 73.513.

[^4]: *See* H.R. 2015, 105th Cong., 1st Sess., § 3301(a)(1); S. 947,
    105th Cong., 1st Sess., § 3001(a)(1).

[^5]: *See Russello v. United States*, 464 U.S. 16, 23-24 (1983).