**In re Carriage of Digital Television Broadcast Signals et. al.**

**Statement of Commissioner Harold W. Furchtgott-Roth,**

## Approving in Part and Dissenting in Part

I agree in part and dissent in part with the Commission's actions in
this proceeding. Were all issues finally resolved, and the next step
were for aggrieved parties to challenge the rules in court, I would feel
compelled to delineate precisely where the Order is faithful to the
statute, and where it is not. No finality is reached here; all issues
can and will be revisited; the line drawn in the sand by this item today
will doubtlessly have been washed away tomorrow.

This is not the Report and Order that I would have written. Were I the
scribe, I would have stated the statutory language in Sections 325, 614,
and 615; reviewed the comments; and reached conclusions on a proper
interpretation of those sections consistent both with current rules and
with any conceivable technology. Where possible, I would have written
simple, unambiguous, easily enforced rules that apply with equal
simplicity to any technology. There would be finality and closure; after
reconsideration, disappointed parties could have gone to court. Rather
than a line-by-line accounting of my views, let me note my three
greatest disappointments: (1) the failure to reach a final resolution
long after the pleading cycle had closed; (2) constitutional ruminations
to limit First Amendment protections; and (3) the interpretation of the
relevant statutory language as requiring special rules for digital
broadcasting.

# Final rules

Decisiveness rather than indecisiveness, action rather than inaction,
are usually thought to be virtues. There are exceptions. It is
difficult, however, to find anything laudatory in the delay by this
Commission to resolve matters regarding digital television carriage
obligations under the current regulatory regime. The issues were
initially framed three years ago. While I have doubts about whether the
issues have ever been properly framed, I have even more doubts that
additional time alone will lead these issues to be properly framed, much
less resolved.

I see no need for a Further Notice, with the possible exception of
creating a record for the Satellite Home Viewer Improvement Act. We have
a substantial record for the must carry issues, and delay only
perpetuates uncertainty. Businesses do not reinvent themselves every
day; they have plans that stretch over years. Capital investments are
not children's toys that can be built in one moment on a whim, torn
apart the next moment on another whim, and reconstructed in a different
place tomorrow. In the business world, investments are made after
careful balancing of expectations of uncertain futures. The more
uncertain those futures are, the less likely investments are made.
Uncertainty about future government rules for Sections 325, 614, and 615
of the Communications Act doubtlessly dampens investment in both the
broadcast and cable industries.

The item today does little to limit uncertainty. Indeed, at times it
seems to send conflicting signals. For example, the Report and Order can
be read to limit the likelihood that the Commission will adopt dual
carriage requirements; the Further Notice can be read as a signal of
likely future adoption of dual carriage. These mixed signals only
aggravate uncertainty.

# Constitutional ruminations

As I have noted in many proceedings, the Commission should interpret the
Act so as to avoid conflicts with the Constitution. The Further Notice
seeks additional information so that the Commission can weigh whether a
dual carriage requirement is constitutional, without first resolving
whether such a requirement is mandated by the Act. Neither the Report
and Order nor the Further Notice squarely addresses the central issue of
precisely what form of must-carry obligations is mandated by the Act. If
the clearest reading of the Act leads to rules that do not raise
constitutional concerns, the Commission need not collect information to
evaluate hypothetical constitutional concerns.

After many years and the receipt of substantial information, we still
claim to be insufficiently informed. Yet we have no institutional, much
less personal, embarrassment in seeking yet more information. Moreover,
we seek comment on a variety of issues, few of which have a direct
bearing on whether dual carriage is or is not constitutional. The
Further Notice, whatever merit it may have, does not necessarily lead to
a final decision by the Commission. It simply promises to delay a
decision for another day, or another year, or another century.

Even if the Commission were to find that a dual carriage requirement is
permitted but not required by the Act, few if any parties can be
comforted by the prospect of the FCC engaging in a constitutional
balancing act. It is one matter, and even a troubling matter, for
Congress to balance competing interests and to write a law limiting
First Amendment protections. That is perhaps one of the lessons of
*Turner II*. It is, in my opinion, an even more troubling matter for the
FCC, without specific delegation of authority under specific law, to
ruminate about how to limit First Amendment interests of some parties
and balance them against other policy objectives. What possible
information can the FCC receive that would compel us to limit protected
speech? What are the rules, bases, and parameters of the balancing act
we undertake other than an implicit understanding that we will make them
up as we go along and that we will recognize the balance of conditions
under which we should limit First Amendment protections only when we see
it. Congress cannot delegate the discretion to the FCC to limit First
Amendment rights where the law can easily be interpreted in such a
manner as not to require any limitation of First Amendment protections.
Only if the Commission were to find that the statute inescapably
mandates a dual carriage requirement, and only if that dual carriage
requirement inescapably raised First Amendment concerns would the
Further Notice be necessitated. The Commission has yet to make either
finding.

# Technical neutrality

Sections 325, 614, and 615 of the Communications Act are not the most
transparent portions of the statute. Nonetheless, regardless of what
Congress meant at the time of drafting these sections, these sections
are not technology-specific; moreover, they were written at a time when
digital broadcasting was in its nascent stages of development from both
a technical and regulatory point of view. These sections have not been
relevantly amended since the advent of new digital technologies.
Consequently, the Commission must interpret Sections 325, 614, and 615
in a manner that applies with equal force whether broadcast transmission
is in analog, digital, Morse Code, or any other conceivable technology.

Simply stated, because Sections 325, 614, and 615 are technology
neutral, our rules interpreting those sections should be technology
neutral as well. Yet the proceeding before us has been framed in a
different manner. Throughout the document is the explicit and implicit
message that Sections 614 and 615 apply to an analog technology, and the
FCC must develop corresponding but different rules to apply to a digital
environment. Our job should not be to write *different* rules for
digital technologies, but to write rules that apply with *equal* force
to any technology.

# Conclusion

Many businesses, large and small, some broadcast and some cable, are
affected by the Commission's interpretation of Sections 325, 614, and
615. They have business plans that may depend on the final regulatory
interpretation of Sections 325, 614, and 615. Absent final rules, no
plans can be executed. Absent final rules, aggrieved parties cannot take
their complaints about our rules to court for resolution of disputes.
For businesses that depend on the FCC to provide regulatory certainty,
their worst nightmare is a Commission that refuses to make decisions,
good or bad. In this instance, those nightmares have come true.