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                                                                                                                              January 20, 2000
                              
In the Matter of Creation of Low Power Radio Service, MM Docket No. 99-25
                       Report & Order
Dissenting Statement of Commissioner Harold W. Furchtgott-Roth
  
       I am relieved that the Commission has not demolished first- and second-adjacent
  channel protections in this Report & Order.  But I can not support, for the reasons set
  forth below, even the elimination of third-adjacent channel protections.  Accordingly, I
  dissent from these new rules establishing "low power" radio licenses.
   
       I dissented from the Notice of Proposed Rulemaking in this proceeding.  See
  Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, MM Docket
  No. 99-25 (Jan. 28, 1999).  I did so because the Notice did not simply propose the
  creation of a new service within existing interference protection standards but went far
  beyond that, suggesting the elimination of third-,second- and even first-adjacent channel
  protections.  As I explained, such action harms existing license holders and their listeners,
  while producing very little in the way of countervailing benefits.  See generally Dissenting
  Statement of Commissioner Harold W. Furchtgott-Roth, Notice of Proposed Rulemaking,
  Creation of a Low Power Radio Service, 14 FCC Rcd 2471 (1999).
  
       In the intervening twelve months, we have received many comments on this
  proposal, as well as engineering studies on the level of interference posed by the potential
  stations.  Unfortunately, this entire proceeding has been marked by a rush to judgment.
  The Commission has simply not taken the time to do the right technical studies, the right
  way.  
  
  Even without studying the engineering studies in the record, we can be sure of one
  thing.  As Commissioner Quello once noted, "it is axiomatic that for each new service
  introduced, interference to existing service is also introduced."   Dissenting Statement of
  Commissioner James H. Quello, Modification of FM Broadcast Station Rules to Increase
  the Availability of Commercial FM Broadcast Assignments, 48 FR 29486, 29512 (1983)
  (BC Docket No. 80-90).  This is true even for 100 watt stations dropped by eliminating
  "only" third adjacent channel protections.  There are real costs   to existing stations, their
  listeners, and to public perception of the quality of FM radio as a media service -- here
  that the Commission has not even attempted to quantify.
  
       But let's consider what the Commission today has actually achieved in terms of
  benefits to place on the other side of the ledger.  According to the NPRM in this
  proceeding, elimination of third adjacent channel protections for 100 watt stations will
  allow for the creation of one such station   in Houston, Texas -- in the top five American
  cities.  No such stations will be created in New York, Los Angeles, Chicago, Philadelphia,
  San Diego, Dallas, San Francisco, Washington, Charlotte, or Miami.  So much for the
  goal of creating low power stations to serve urban communities; there will be precious few
  new licensees in urban markets.
  
       To the contrary, the bulk of new licensees will be smaller markets.  In many of
  these areas, full power stations likely could already be dropped in without changing third-
  adjacent channel standards at all.  (At least, there is no indication of an effort on the part
  of the Commission even to consider such an alternative approach.)  Given that there is
  little existing demand for additional full-power stations in these markets, there is no
  evidence of commercial viability.  Indeed, the evidence suggests that such stations are not
  capable of existence as going concerns.
  
  Perhaps there is a demand for lower power noncommercial stations.  Theoretically,
  however, any such actual demand could be met by the dispensation of licenses within our
  existing rules   i.e., by giving out 101 watt licenses consistent with the 100 watt minimum
  requirement.  See 47 C.F.R. section 73.211(a)(3).  Yet again, we receive few if any
  applications for 101 watt licenses, even in the noncommercial arena.  Similarly, if
  somebody really wanted to operate a 50-watt station, they might file a request for waiver
  of the 100-watt minimum rule.  As far as I can tell, though, no such waiver has ever been
  filed, again suggesting a lack of any real demand for such licenses.  In short, there is no
  evidence in the behavior of license applicants that suggests any pent-up demand for the
  stations in question.
  
       The Commission has also made clear its intent to create these stations for the use
  of church groups.  See Report & Order at para. 5.  Since the relevant regulatory
  classification now is noncommercial educational ("NCE"), the Commission would seem
  bound to apply its recently adopted "future guidance" on the meaning of "educational"
  programming to these religious entities.   That guidance would narrow the scope of
  religious programming that qualifies as educational for purposes of a valid NCE
  designation.  I wonder whether these groups are aware   and how they will feel when they
  learn   that the broadcast of religious services may  not count towards the required
  amount of educational programming that they must air in order to retain their licenses. 
  See In re Applications of WQED Pittsburgh and Cornerstone Television, Inc. MM No.
  99-393 (rel. Dec. 29, 1999).  I also wonder whether they are aware that under that
  decision they might be required to serve the needs of the "entire"community, rather than
  their "small, local" group, Report & Order at para. 17.   So much for the goal of creating
  low power stations for use by churches and church groups.
  
       And will the newly recreated Equal Employment Opportunity rules apply to low
  power stations with 5 or more employees? See 47 CFR section 73.2080(a) (applying rules
  to "all licensees or permittees of commercially owned or noncommercially operated AM,
  FM, TV or international broadcast stations') (emphasis added).  Presumably they must,
  just as, for instance, the political programming rules do.  The required outreach and
  paperwork for EEO alone, not to mention all other regulations, may prove overwhelming
  for the operators of low-power radio stations.  If these duties are taken seriously by
  operators and enforced by the Commission, low power operators will spend more time
  attempting to figure out what Title 47 of the Code of Federal Regulations requires of them
  than they will spend broadcasting.
    
  The net result of the foregoing is that there is very little evidence   in the form of
  applications for, say, 101 watt stations or waivers of the 10-watt minimum   indicative of
  current market demand for the stations now being created.  Layered on top of the
  apparently low state of demand for these licenses today are the many regulations to which
  the stations will be subject.  Any current demand for 100 and 10 watt stations will only be
  dampened by these regulatory burdens.  
  
  In short, the Commission has, at the expense of existing service quality, created: a
  handful of new stations in primarily non-urban areas; stations that may not meet their
  licensing requirements if they air religious programming; stations that may well be
  unlistenable by fixed listeners due to interference received from higher power stations; a
  threat to the development of digital radio services; a heavy regulatory scheme, including
  cross-ownership, political programming rules, and EEO outreach duties, to govern these
  very small operators; and more enforcement and administration burdens for the
  Commission. This is not a wise balance of interests.   I therefore dissent.