#  January 20, 2000

# 

# In the Matter of Creation of Low Power Radio Service, MM Docket No. 99-25

## Report & Order

## Dissenting Statement of Commissioner Harold W. Furchtgott-Roth

I am relieved that the Commission has not demolished first- and
second-adjacent channel protections in this Report & Order. But I can
not support, for the reasons set forth below, even the elimination of
third-adjacent channel protections. Accordingly, I dissent from these
new rules establishing "low power" radio licenses.

I dissented from the Notice of Proposed Rulemaking in this proceeding.
*See* Notice of Proposed Rulemaking, Creation of a Low Power Radio
Service, MM Docket No. 99-25 (Jan. 28, 1999). I did so because the
Notice did not simply propose the creation of a new service within
existing interference protection standards but went far beyond that,
suggesting the elimination of third-,second- and even first-adjacent
channel protections. As I explained, such action harms existing license
holders and their listeners, while producing very little in the way of
countervailing benefits. *See generally* Dissenting Statement of
Commissioner Harold W. Furchtgott-Roth*, Notice of Proposed Rulemaking*,
*Creation of a Low Power Radio Service*, 14 FCC Rcd 2471 (1999).

In the intervening twelve months, we have received many comments on this
proposal, as well as engineering studies on the level of interference
posed by the potential stations. Unfortunately, this entire proceeding
has been marked by a rush to judgment. The Commission has simply not
taken the time to do the right technical studies, the right way.

Even without studying the engineering studies in the record, we can be
sure of one thing. As Commissioner Quello once noted, "it is axiomatic
that for each new service introduced, interference to existing service
is also introduced." Dissenting Statement of Commissioner James H.
Quello, *Modification of FM Broadcast Station Rules to Increase the
Availability of Commercial FM Broadcast Assignments*, 48 FR 29486, 29512
(1983) (BC Docket No. 80-90). This is true even for 100 watt stations
dropped by eliminating "only" third adjacent channel protections. There
are real costs -- to existing stations, their listeners, and to public
perception of the quality of FM radio as a media service \-- here that
the Commission has not even attempted to quantify.

But let's consider what the Commission today has actually achieved in
terms of benefits to place on the other side of the ledger. 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. So much for the goal of creating low power stations to serve
urban communities; there will be precious few new licensees in urban
markets.

To the contrary, the bulk of new licensees will be 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 existing rules -- *i.e.,* by giving
out 101 watt licenses consistent with the 100 watt minimum requirement.
*See* 47 C.F.R. section 73.211(a)(3).[^1] Yet again, 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.

The Commission has also made clear its intent to create these stations
for the use of church groups. *See* Report & Order at para. 5. Since the
relevant regulatory classification now is noncommercial educational
("NCE"), the Commission would seem bound to apply its recently adopted
"future guidance" on the meaning of "educational" programming to these
religious entities. [^2] That guidance would narrow the scope of
religious programming that qualifies as educational for purposes of a
valid NCE designation. I wonder whether these groups are aware -- and
how they will feel when they learn -- that the broadcast of religious
services may not count towards the required amount of educational
programming that they must air in order to retain their licenses. *See*
*In re Applications of WQED Pittsburgh and Cornerstone Television, Inc.*
MM No. 99-393 (rel. Dec. 29, 1999).[^3] I also wonder whether they are
aware that under that decision they might be required to serve the needs
of the "entire"community, rather than their "small, local" group, Report
& Order at para. 17. So much for the goal of creating low power stations
for use by churches and church groups.

And will the newly recreated Equal Employment Opportunity rules apply to
low power stations with 5 or more employees? *See* 47 CFR section
73.2080(a) (applying rules to "*all* licensees or permittees of
commercially owned or noncommercially operated AM, FM, TV or
international broadcast stations') (emphasis added). Presumably they
must, just as, for instance, the political programming rules do. The
required outreach and paperwork for EEO alone, not to mention all other
regulations, may 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 existing service
quality, created: a handful of new stations in primarily non-urban
areas; stations that may not meet their licensing requirements if they
air religious programming; stations that may well be unlistenable by
fixed listeners due to interference received from higher power stations;
a threat to the development of digital radio services; a heavy
regulatory scheme, including cross-ownership, political programming
rules, and EEO outreach duties, to govern these very small operators;
and more enforcement and administration burdens for the Commission. This
is not a wise balance of interests. I therefore dissent.

[^1]: 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. *See* 33 Fed Reg 7574. Today's Order never comes to terms
    with the Commission's clear statements about the need for the
    100-watt floor.

[^2]: To be sure, the WQED Order involved television broadcast licenses,
    as opposed to radio broadcast licenses. But both sorts of licenses
    are categorized as "noncommercial educational." I can see no
    non-arbitrary way to limit the decision on the meaning of the term
    "educational" to the television context, however. There is nothing
    about the nature of the media at issue -- television versus radio --
    that could justify the use of two different definitions of the
    substantive adjective "educational." Programming does not change its
    "educational" nature simply because it is received on a radio as
    opposed to a television.

[^3]: *See also*
    http://www.fcc.gov/Bureaus/Mass_Media/Orders/1999/fcc99393.txt.