December 15, 1999

**CONCURRING STATEMENT OF COMMISSIONER MICHAEL K. POWELL**

*Re: Notice Of Inquiry, In the Matter of Public Interest Obligations of
TV Broadcast Licensees*

Although I join with my fellow Commissioners today in adopting this
Notice of Inquiry, I do so with the concerns and reservations outlined
in this statement.

As an initial matter, I am unpersuaded that the time is ripe for this
Notice of Inquiry (NOI). Undoubtedly, there are important questions
concerning the application of existing public interest obligations to
the new digital medium. Digital transmission affords the opportunity and
flexibility to offer HDTV, several standard DTV channels, ancillary
services and any combination of them all. These new possibilities raise
questions as to what facet of a multidimensional offering the public
interest duty runs. Yet, we are at the very preliminary stages of the
digital transition, and it is far from clear what form new services will
take in the digital era. While I applaud the uncustomary effort to get
far in front of the curve, it seems to me premature to attempt to fix
public interest obligations to a service that has yet to blossom. The
wiser course would have been to initiate this inquiry at a time when we
understand more about the proposed or likely applications of digital
television so our proposal would bear some plausible nexus to the
service itself, rather than its potential.

I am reminded of the designers of the Empire State Building in New York
City, who designed a building that, at the time, was the tallest
man-made structure on the planet. In designing the building, the
designers took into account features that might be needed for such a
world-class structure. One of the most visionary features was a mast for
mooring dirigibles atop the Empire State Building that would be used by
dirigibles carrying passengers visiting the City. Needless to say, mass
transit by dirigible never came to pass, but its prospects were well
anticipated by the designers of the building. I have some reservation
that some of the proposals floated in the Notice of Inquiry may one day
suffer the same fate as the Empire State Building\'s dirigible mast.

Further, as a fundamental matter, I question why the mere use of a
digital medium rather than an analog one justifies *new* public interest
obligations, particularly ones of the breadth and scope envisioned in
this NOI. Underlying many of these proposals seems to be the supposition
that we gave broadcasters valuable spectrum for free, and thus we want
payment in the form of new obligations. Yet, the government had the
option to make broadcasters pay for their spectrum, and chose not to I
assume because it believed the "public interest" was served by advancing
free over-air-television. Thus, I recoil somewhat from the view that the
transition to digital (and its putative commercial value to
broadcasters) justifies consideration of new and expansive public
interest duties.

Moreover, I believe that as we undertake this inquiry we have a solemn
obligation to evaluate honestly the extent to which scarcity can still
justify greater intrusion on broadcasters' First Amendment rights. It is
ironic to me that as we enter the digital age of abundance and tout its
myriad opportunities for more information through more outlets, we
simultaneously propose greater public interest obligations that infringe
upon speech, justified on the crumbling foundation of scarcity.
Something must give.

Finally, this item seeks comment on a vast menu of proposals loosely
aggregated under the heading of "political discourse." In their various
iterations, these proposals contemplate the Commission requiring
broadcasters to provide time for "candidate-centered discourse" or other
types of air time under the mantle of the public interest standard. I
have made no secret of my views concerning the appropriateness of the
Commission initiating an inquiry into free air time for political
candidates, without specific direction from Congress.[^1] The Commission
here avowedly promises not to propose such rules or polices, however,
but only to initiate public debate on "whether, and how, broadcasters'
public interest obligations can be refined to promote democracy and
better educate the voting public." In light of this promise, and because
I do not make a habit of dissenting on the initiation of inquiries
generally, I have not dissented on this portion of the item.

I fully recognize that the expense of political campaigns, particularly
broadcast air time, has a direct impact on democracy by affecting those
who can run for and win political office. It may very well be the case
that digital transmission technology holds promise to greatly reduce
these expenses in a way that does not unduly interfere with the reasoned
editorial and business judgments of broadcasters. Yet, putting aside the
question of our authority, I feel strongly that a federal agency of
un-elected officials should not on its own initiative tread in an area
that may fundamentally affect the electoral process. Such modification
or reform should come from the people through their duly elected
representatives in Congress. It is even more troubling that an agency
would pursue such questions, when the issue has been raised and debated
by the Congress, but has to date been rejected, as is the case with this
bevy of issues. Such action risks opening a back door to the legislative
and electoral process. That said, to the extent the inquiry will develop
useful information that proves useful to the legislature's
consideration, I am unopposed.

For the foregoing reasons, I concur in the Notice of Inquiry.

[^1]: Remarks of Commissioner Michael K. Powell before The Freedom
    Forum, April 27, 1998. The full text of these remarks is available
    on the Commission's website
    \<[www.fcc.gov/Speeches/Powell/spmkp809.html](http://www.fcc.gov/Speeches/Powell/spmkp809.html)\>.
    Press Statement of Commissioner Michael K. Powell Regarding Free
    Time for Candidates, January 28, 1999. The full text of this press
    statement is available on the Commission's website
    \<[www.fcc.gov/Speeches/Powell/Statements/stmkp802.html](http://www.fcc.gov/Speeches/Powell/Statements/stmkp802.html)\>.