March 12, 1998
      SEPARATE STATEMENT OF
COMMISSIONER MICHAEL POWELL
Re:     1998 Biennial Regulatory Review -- Review of the Commission's Broadcast
       Ownership Rules and other Rules Adopted Pursuant to Section 202 of the
       Telecommunications Act of 1996, MM Docket No. 98-
       In the 1996 Telecommunications Act, Congress directed the FCC to review all of our
ownership rules every two years and repeal or modify any regulation that is "no longer in the
public interest."  I support this Notice of Inquiry initiating the review.  It is indeed time to
take a sober and realistic look at our broadcast ownership rules in light of the current
competitive communications environment.
       Ownership rules have a long history in telecommunications regulation.  At various
times, we have justified these rules out of concern over possible competitive harms that
might befall viewers and listeners (monopoly prices and restricted output).  More often,
however, many of the rules we propose to re-evaluate today are hinged on considerations we
loosely call diversity.
       In mandating that we review these ownership rules every two years, Congress
appeared primarily concerned that we adjust or eliminate these rules if, as is anticipated by
the Telecommunications Act, sufficient robust competition develops.  We have a duty to take
a hard look at our ownership rules in light of the current state of competition and to ask and
answer whether in light of significant changes in competitive conditions these rules continue
to have vitality.  In this regard, I endorse fully Commissioner Furchtgott-Roth's clearly
enumerated framework for considering these issues, as well as his call to address squarely
the validity of spectrum scarcity rationales for our rules.
       In all likelihood, however, the pivotal issues in this proceeding are likely to revolve
around diversity.  While competitive concerns are traditionally evaluated using well-
established analytical standards, diversity is a much more visceral matter -- bathed in difficult
subjective judgments and debated in amorphous terms.  It has always been difficult to
articulate clearly the government's interest in "diversity," and it has become even more
difficult to do so in light of current judicial precedents.  Yet we must do so, if we are to
affirm any of our ownership rules based on such an interest, and we must do so with
adequate rigor and clarity in order for such rules to withstand judicial scrutiny.
       What do we need to know in order to complete this difficult task?  At various times
there have been a number of distinct expressions of diversity, which serve as a useful
beginning framework for evaluation:
       (1)  Diversity of ownership:  What should this mean?  Merely a variety of owners,
       regardless of ethnicity or gender?  Adequate representation among owners of
       minorities and women?  If so, how great should that representation be to meet the
       public interest standard?  Is diversity of ownership a legitimate government interest
       standing alone, or only in combination with other objectives, such as diversity of
       programming?
       (2)  Diversity of programming:  What is the objective here? A variety of fare?
       Programming that is tailored to local communities?  Programming that is targeted to
       particular minority or gender groups within a community?  And, what is the
       relationship between ownership and programming, if any?
       (3)  Diversity of outlets:  This can mean many different things as well. Do we wish
       to maximize the number of diverse outlet mediums (e.g., T.V., radio, newspapers,
       internet, etc.)?  Do we wish to promote multiple outlets of the same type, and if so
       for what purpose (ownership opportunity, diversity of programming and viewpoint)?
       How do we measure the adequate number of outlets under the public interest
       standard?
       In the end, we will have to evaluate each of these diversity objectives alone and in
combination and consider carefully whether government-imposed prophylactic ownership
restrictions actually serve to advance any or all of these objectives, and if so, whether such
restrictions are narrowly tailored to meet our objectives.  We must be capable of explaining
the link between ownership restrictions and our asserted diversity objectives.  I urge
commentators to provide comments with sufficient depth and sober analysis to allow us to do
so.