August 5, 1999
                     SEPARATE STATEMENT OF
                 COMMISSIONER MICHAEL K. POWELL
     Re:  Review of the Commission's Regulations Governing Television Broadcasting (MM
     Docket No. 91-221); and Television Satellite Stations Review of Policy and Rules (MM
     Docket No. 87-8)
     Review of the Commission's Regulations Governing Attribution of Broadcast and
     Cable/MDS Interests (MM Docket No. 94-150); Review of the Commission's Regulations
     and Policies Affecting Investment in the Broadcast Industry; (MM Docket No. 92-51);
     and Reexamination of the Commission's Cross-Interest Policy  (MM Docket No. 87-154).
     Today  I vote in favor of these orders revising the Commission's rules governing local
broadcast ownership.  I write separately to give greater context  to my vote.
I believe that the actions we take today are both constitutional and consistent with the
explicit intent of Congress to promote diversity and competition in the media marketplace.
Section 257(b) of the 1996 Act explicitly instructs the Commission to "promote the policies and
purposes of this Act favoring diversity of media voices."
47 U.S.C. Section 257(b).  Thus, as we review our ownership rules, it is clearly the intent of
Congress that we consider the implications of our rules on diversity.
I agree that diversity is very hard to define, and is at some level a visceral concept.
Accordingly, we should be cautious in over-invoking it as a justification for imposing or intruding
on constitutionally protected activities.  Yet, not all worthy policy goals, not all important
government interests, and indeed, not all compelling government interests, can be quantified or
measured with precision.  I do not believe the Constitution boxes out all subjective judgment in
government actions.  Yes, diversity is hard to define, but not more so than obscenity, privacy, or
interstate commerce, areas in which the law allows government activity.  What is important, is
that such rules be balanced and well-reasoned.  Moreover, where rules involve some degree of
subjective balancing, they should be reviewed frequently to ensure they remain on keel, given
changing conditions in the market.  This is what I feel the Commission has failed to do over the
years.  But the Commission takes an important step forward today, and it should continue to
review these rules at periodic intervals, as Congress instructed. 47 U.S.C. Section 202(h).
In all of the discussion about diversity and localism, I believe we lose sight of something
that is unique about broadcasting, something that I believe is a substantial public benefit and
something that is not so easily entangled in the web of concern about content infringement.  It is
the fact that broadcasting is free.
There are substantial public benefits that flow from the free broadcasting business model.
It provides access by all of our citizens to news, entertainment, and information, regardless of
their socio-economic class.  It provides valuable information to citizens in natural disasters who
cannot access their phones or cable systems because of downed lines or loss of power.  It lets
people in a mobile society stay connected to the outside world, as well as individuals in remote
areas.
But, this free business model is quite unique and, thus, some special consideration of the
challenges to it is warranted.  For example, as a medium it competes against other media that have
access to subscription revenue in addition to advertising dollars.  Broadcasters cannot as easily
repackage programming or recoup costs of purchasing high quality programming.  And they have
significantly less distribution capacity than most of their competitors.  Therefore, it is important to
ensure our rules do not unduly constrain broadcast business competitiveness and viability.
Additionally, the public value of having a diverse free medium also warrants some
government attention to undue concentration.  If a single media group were to monopolize a
market, advertising rates would likely increase as would the desire for advertisers to place
advertisements with the concentrated media group.  Because advertising dollars are not infinite, it
would mean other stations would suffer the effects of less advertising revenue, which is the
lifeblood of a station's viability.  Should such a station be crippled or fail, the public would have
lost a source of programming.  This could happen irrespective of how highly the public might
value the station, since they cannot express their preference by paying higher rates to sustain the
station.  For this reason, we are justified in giving some consideration to the structure of the
market for free broadcasting.
Finally, I would be remiss if I did not briefly express a few of my concerns.   In the items
adopted today the Commission does not grandfather LMAs that were entered into after
November 1996, the date of the Further Notice of  Proposed Rulemaking in these proceedings.  I
would have preferred to grandfather LMAs entered into after November 1996. The Commission's
delay in bringing these proceedings to a close since 1996 has forced broadcasters to make
business decisions regarding LMAs for over three years without knowing what the rules would
be.  As a result, I believe the equities lie in favor of grandfathering these arrangements.
I also would have preferred to count additional media in the voice counts.  For example, where
cable is subject to effective competition as a result of a cable overbuild,  I would argue that there
are two voices for cable in that market.  I would not have required involuntary bankruptcy to
access the failed station waiver.  I do not believe that there is any real threat of a broadcaster's
entering into bankruptcy voluntarily to gain the benefits of this waiver provision.
Rules, however, are by their very nature both under- and over-inclusive.  The rules we
adopt today are not all right, and not all wrong.  But they reflect what good public policy often
must be, a balanced compromise of conflicting values and judgments. And I believe that with the
Orders adopted today, the Commission takes an extremely important step toward aligning our
rules with the current realities of the electronic media market programming market.