## Testimony of Commissioner Harold W. Furchtgott-Roth Before the Subcommittee on Telecommunications, Trade and Consumer Protection On the FCC's Low-Power FM: A Review of the FCC's Spectrum Management Responsibilities and H.R. 3439, the Radio Broadcasting Preservation Act, Thursday, February 17, 2000, 10:00 a.m.

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Thank you Chairman Tauzin, distinguished members of the
Telecommunications, Trace, and Consumer Protection Subcommittee, for
inviting me to testify on the Federal Communications Commission's recent
decision to create a new class of "low power" radio service -- or, put
another way, to degrade the quality of radio service on the FM band for
listeners nationwide.

As you know Mr. Chairman, I dissented from both the Notice of Proposed
Rulemaking (NPRM) and the Order adopting final rules on this matter. At
the outset of the low power proceeding, however, I made clear that I was
not -- nor am I today \-- opposed to the creation of a low power radio
service *per se*. Whatever new service could have been provided within
the range of existing interference regulations would have been worth
considering. But I did not believe that we should create new stations at
the expense of those interference protection standards. That,
unfortunately, is precisely what the Commission did last month.

Under the well established protection standards in place at the time of
the NPRM, the Commission could have authorized so few new stations --
not more than a handful across the country \-- that the results would
hardly have warranted the effort of printing the new regulations. In
order to create any marginal amount of new service, protection standards
had to be loosened so as to eliminate long-standing third adjacent
channel safeguards.

In my view, this action represents a severe incursion on the rights of
current FM band licenseholders, as well as on the value of their
licenses. These licensees reasonably expected that the Commission would
protect the integrity of the band on which they were licensed to
operate, and they invested heavily in their businesses based on this
reasonable expectation.

Perhaps more importantly, this action also impairs the ability of
current licensees to serve their *listeners*, who must not be forgotten.
While a few new people may be able to broadcast, others may lose their
ability to receive and listen to existing stations due to interference.
I do not think that radio listeners will be pleased to find out that
their favorite station is no longer listenable on their radio.
Troublingly, however, the Commission never made any effort to assess,
much less quantify, the effect on existing stations and listeners of
eliminating these well established interference protections.

Clearly, the Commission's action harms existing license holders and
their listeners. On the other side of the ledger -- the "benefits" side
\-- let's consider what the Commission has actually achieved.

According to the NPRM in this proceeding, elimination of third adjacent
channel protections for 100 watt stations will allow for the creation of
*one* such station -- in Houston, Texas \-- in the top five American
cities. *No* such stations will be created in New York, Los Angeles,
Chicago, Philadelphia, San Diego, Dallas, San Francisco, Washington,
Charlotte, or Miami.

At the very last minute -- in fact, the evening before the final vote
took place, and without the knowledge of this Commissioner \-- these
numbers were rejiggered so as to produce slightly more stations. Current
and final estimates are that in the five largest cities there will now
be a total of *three* stations. And, where there were previously no
stations, there will now be one station in Philadelphia, four in Dallas,
two in San Francisco, three in Washington, and four in Miami. But there
will still be no stations in New York, Los Angeles, San Diego, or
Charlotte. Of course, the extra stations that were created between the
NPRM stage and the final Order were bought at the price of dropping
proposed spacing requirements that would have protected low power from
full service stations.

So while there may be a few more stations now than originally thought,
they are still very few in number, and those stations are defenseless in
terms of interference from regular power stations, further decreasing
the utility of these stations. So much for the goal of creating low
power stations to serve urban communities; there will be precious few
new licensees in urban markets, and these small-scale licensees will
have to contend with a sea of interference from full power broadcasters.

In fact, the bulk of new licensees will be in smaller markets. In many
of these areas, full power stations likely could already be dropped in
*without* changing third-adjacent channel standards at all. (At least,
there is no indication of an effort on the part of the Commission even
to consider such an alternative approach.) Given that there is little
existing demand for additional full-power stations in these markets,
there is no evidence of commercial viability. Indeed, the evidence
suggests that such stations are not capable of existence as going
concerns.

Perhaps there *is* a demand for lower power noncommercial stations.
Theoretically, however, any such actual demand could be met by the
dispensation of licenses within our previous rules -- *i.e.,* by giving
out 101 watt licenses consistent with the 100 watt minimum requirement.
Notably, the rationale for the 100-watt minimum was efficiency in
spectrum distribution. It was thought inefficient, unwise, and
unmanageable to license radio stations at operating powers any less than
this. The Commission has never explained why it is any less inefficient
today than it has been for decades to allocate radio spectrum at lower
levels.

In any event, we receive few if any applications for 101 watt licenses,
even in the noncommercial arena. Similarly, if somebody really wanted to
operate a 50-watt station, they might file a request for waiver of the
100-watt minimum rule. As far as I can tell, though, no such waiver has
ever been filed, again suggesting a lack of any real demand for such
licenses. In short, there is no evidence in the behavior of license
applicants that suggests *any* pent-up demand for the stations in
question.

After creating this new class of licensees, the Commission then loaded
them up with the same heavy regulatory burdens that most broadcasters
must shoulder. For instance, the newly recreated Equal Employment
Opportunity rules will apply to low power stations to the same extent
that they apply to all broadcasters. Also applicable are all the
political programming rules, cross-ownership restrictions, special
ownership limits for low power stations, and a slew of other FCC
regulations.

The required actions and paperwork for compliance with these regulations
may well prove overwhelming for the operators of low-power radio
stations. If these duties are taken seriously by operators and enforced
by the Commission, low power operators will spend more time attempting
to figure out what Title 47 of the Code of Federal Regulations requires
of them than they will spend broadcasting.

The net result of the foregoing is that there is very little evidence --
in the form of applications for, say, 101 watt stations or waivers of
the 10-watt minimum -- indicative of current market demand for the
stations now being created. Layered on top of the apparently low state
of demand for these licenses today are the many regulations to which the
stations will be subject. Any current demand for 100 and 10 watt
stations will only be dampened by these regulatory burdens.

In short, the Commission has, at the expense of established service
quality and existing radio listeners, created: a handful of new stations
in primarily non-urban areas, failing to fulfill one of its own chief
goals; stations that themselves may well be unlistenable due to
interference from high power stations; a threat to the development of
digital radio services; a heavy regulatory scheme, including ownership,
cross-ownership, political programming, and EEO rules, to govern these
very small operators; and more enforcement and administration burdens
for the Commission.

To conclude, this is not a wise balance of interests. Nor does it comply
with our fundamental statutory charge to \"make available . . a rapid,
*efficient*, Nation-wide and world-wide wire and radio communication
service.\" 47 USC section 151 (emphasis added).

Thank you.