**SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH,**

# Approving in Part, Dissenting in Part

Re: Assessment and Collection of Regulatory Fees for Fiscal Year 2000,
MD Docket No. 00-58 (rel. July 10, 2000).

I generally support today's item. However, two aspects of the Order
particularly concern me. First, I am troubled by yearly increases in
fees that do not appear tied to any corresponding increase in the
services provided to these licensees by the Commission. Congress
requires that the Commission collect \$185, 754, 000 this year to cover
the costs of regulation and services.[^1] Implicitly, this amount is
"reasonably related to the benefits provided to the payor of the fee by
the Commission's activities."[^2] Over the past 6 years, however, these
regulatory fees have increased over 200% and now cover 88.5% of the
Commission's operating budget. It is hard to imagine that these
increases reflect corresponding increases in Commission services.

These immense sums are not true "fees," but instead are more accurately
described as taxes. Ordinarily, administrative fees are distinguishable
from taxes in that the payor of fees receives a benefit in return.
Conversely, taxes "confer\[\] no special benefit on the payee," rather,
they are "intended to raise general revenue" or are "imposed for some
public purpose." [^3] At this point, our regulatory fees cover nearly
90% of the FCC's total operating budget. It is difficult to contend that
the payors of these fees account for 90% of the FCC's costs. "Fees"
should not be used as a back door to impose tax-like obligations on
licensees.

My second concern is the assessment of fees upon Comsat for the Intelsat
satellite system. This order purports to find Comsat liable for certain
of these fees. The order contends that Comsat is liable under the fee
category, "space station\[s\] (per operational station in geosynchronous
orbit) (47 CFR Part 25)." [^4] Comsat satellites are not, however, and
never have been regulated or licensed under Part 25. The majority
contends that the parenthetical reference to Part 25 following the fee
is "essentially clerical" and "does not reflect a substantive
limitation."[^5] Needless to say, I am troubled by this
characterization, particularly since the other parentheticals do not
seem designed to merely "call attention to" certain "relevant" portions
of our rules. In fact, other parentheticals regarding this fee category
seem quite directive: "per operational station in geosynchronous orbit."
I do not believe we possess the authority to interpret away that
limitation to impose the fee based on some other calculus. I fear that
imposition of the fee on non-part 25 systems leads us down that
dangerous road.

The Commission does possess clear authority to amend the Schedule of
Regulatory Fees.[^6] Congress mandates that in "making such amendments,
the Commission shall add, delete or reclassify services in the Schedule
to reflect additions, deletions, or changes in the nature of its
services as a consequence of Commission rulemaking proceedings or
changes in law."[^7] However, just as we failed to follow this
obligation in the original Comsat "Signatory Fee" proceeding,[^8] here
too the Commission has not undertaken a proceeding to formally amend the
fee schedule based on a "rulemaking proceedings or changes in law."[^9]
I do not believe we should interpret away such limitations, rather the
FCC is obligated to implement the statutory fee schedule as written or
formally change it, not merely read purportedly inconvenient limitations
out of the statute.[^10]

For the foregoing reasons, I respectfully dissent.

[^1]: *See* Public Law 105-277 and 47 U.S.C. 159(a)(2).

[^2]: 47 U.S.C. § 159(a)(1)(A).

[^3]: *Thomas v. Network Solutions*, 2 F.Supp.2d. 22 (D.C. 1998).

[^4]: *See* 47 U.S.C. § 159(g). Imposition of fees on Comsat has already
    endured a troubled history. *See* Panamsat Corp. v. FCC, 198 F.3d
    890 (D.C. Cir. 1999); Comsat Corp. v. FCC, 114 F.3d 223 (D.C. Cir.
    1997).

[^5]: Order at ¶ 22. Indeed, such an interpretation would render the
    parenthetical "mere surplusage" -- contrary to established rules of
    statutory construction. *See* Mail Order Ass'n of America v. USPS,
    986 F.2d 509 (D.C. Cir. 1993).

[^6]: *See id*. § 159(b)(3).

[^7]: *Id*.

[^8]: *See* Comsat Corp. v. FCC, 114 F.3d 223 (D.C. Cir. 1997) (holding
    that the Commission cannot make an amendment to the fee schedule
    unless pursuant to a rulemaking or change in the law).

[^9]: In light of the longstanding nature of the Comsat service and the
    existing fee category structure, it is not clear that there has been
    the requisite "additions, deletions, or changes in the nature of its
    services." *See* 47 U.S.C. § 159(b)(3).

[^10]: The Order's interpretation seems more like a rewrite. *See*
    Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272,
    1276 (1996) (Stating that the Department's "treatment of this
    statute is not an interpretation but a rewrite.").