January 28, 1999

                     DISSENTING STATEMENT OF
              COMMISSIONER HAROLD W. FURCHTGOTT-ROTH

In re:  Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, MM
Docket No. 99-25.

     I am not opposed to the creation of a low power radio service. Whatever new service can
be provided within the range of existing interference regulations would be something worth
considering. I do not believe that we should create new stations at the expense of current
interference protection standards, however.  Were the NPRM limited to consideration of service
based on the maintenance of the interference rules now set forth in our regulations, I could thus
have supported its issuance.

     But the NPRM is not so limited.  As the appendix shows, under existing interference
rules the Commission can authorize so few new stations that the results would hardly warrant the
effort.  In order to create any substantial amount of new service, protection standards have to be
loosened so far as to eliminate third and even second adjacent channel safeguards.  This is a
severe incursion on the rights of current licenseholders, as well as on the value of their licenses,
which will be drastically undercut in the market if these proposals are adopted.  This proposal
also potentially impairs the ability of current licensees to serve their listeners, who must not be
forgotten; while new people may be able to broadcast, others may lose their ability to receive and
listen to existing stations due to interference.  It especially troubles me that the Commission has
made no effort to assess, much less quantify, the effect on existing stations of eliminating these
safeguards.  In my opinion, weighing the "cons" of the proposal
-- namely, the negative effects on existing stations and their audiences -- in addition to
considering  its "pros" is essential to the decision whether to move forward with these petitions
for rulemaking.

     Even if the second and third adjacent channel protections were wholly eliminated,
however, very little new service would be created in the major urban markets at which this
proposal is in significant part aimed.  See supra at para. 1 ("We believe these new LPFM stations
would provide a low-cost means of serving urban communities and neighborhoods. . . .).  For
instance, in New York city, there would be no LP1000 stations and no LP100 stations, and in
Los Angeles there will be only one LP1000 station, no LP100 stations with translator protections
and six LP100 stations with unprotected translators.  See Appendix D. In addition to their small
number, these services will be relatively unavailable to mobile audiences due to their low
wattage.  

     Furthermore, while many proponents of this rulemaking see it as a means of increasing
broadcast ownership by minorities and women, there is in all likelihood no constitutionally
sound way to assure such a result. There is simply no way that the Commission can say that, if a
first-come, first-served rule is adopted, these licenses will not be awarded to whoever applies for
them first or that, in the case of mutually exclusive applications, these licenses will not go to the
highest bidder.  

     Having thus proposed the creation of these new stations, the Commission then concludes
that it should impose "strict local and cross- ownership restrictions" on them.   Supra at para. 57. 
If it did so, the Commission would create a gross inconsistency with the more liberal ownership
limits under section 202(b) of the Telecommunications Act of 1996.  Nothing in section 202(b)
suggests that it was not meant to apply prospectively (as most statutes are) to any radio stations
that might come into being after the Act, as the NPRM suggests.  And, on a practical level, these
ownership limits would help to ensure that no one with any actual experience in broadcasting
could actively participate in these new stations. By dint of regulation, then, these stations may be
pushed toward second-class performance and quality levels.  

     The creation of low power radio by elimination or modification of current interference
rules may also have a similar effect on the FM radio band itself by hindering the development of
new, advanced services such as in-band, on-channel digital radio.  As the NPRM notes, plans for
the delivery of this service have been based on current interference standards, and it is unclear
whether these plans can be successfully modified should those standards change.  While the rest
of broadcasting (indeed the entire communications industry) moves toward the advantages of
digital technology, this contemplated FCC policy may make it harder for the FM radio band to
keep up.

     Moreover, "community participation and the proliferation of local voices," supra at para.
2, can be achieved through a variety of ways other than the creation of microradio. People can
communicate with others by obtaining extant commercial or noncommercial licenses, the
purchase of air time on broadcast properties, leased access and/or PEG cable schemes, amateur
radio, e-mail, internet home pages, bulletins and flyers, and even plain old-fashioned speech. 
The notion that a message must be broadcast over radio spectrum before its speaker has a "voice"
overlooks the realities of modern life.  Indeed, as time goes on, broadcasting has faced increasing
competition, becoming less and less powerful a medium. It is no secret that the television
broadcast networks are attempting to find innovative ways to deal with decreasing viewership in
the face of cable, DBS, and other video delivery and entertainment systems that compete for the
public's attention.

     And, of course, Commission enforcement of rules and regulations applicable to the new
stations will be an administrative drain and involve the Commission in micromangement of the
smallest of operations.
     
     Thus, this proposal does not do much to advance its supposed goals.  What minimal
furtherance of those goals it would achieve comes at great cost to current licenseholders and
listeners.  Good -- arguably better, even -- alternatives for the dissemination of messages in
America certainly exist.  And the administrative burdens on the Commission will likely be great. 
Accordingly, I do not think this proposal represents an efficient use of radio spectrum.

     In addition, I do not view concern about the effects of consolidation in the radio industry
as the result of the 1996 Telecommunications Act as an appropriate motivation for the creation of
low power radio stations.  See supra at para. 10 ("[W]e are concerned that consolidation may
have a significant impact on small broadcasters and new entrants into the radio broadcasting
business by driving up station prices, thereby exacerbating the difficulty of entering the broadcast
industry and of surviving as an independent operator."). These are, at bottom, arguments against
consolidation. Congress, however, made the clear policy choice to lift national ownership limits. 
Whatever the results of that choice, they are the function of Congress' elected course; Congress
surely realized that one of the possible results of lifting ownership limits would be that any pent-
up demand for properties that would be released into the market might raise prices.  

     Finally, I have procedural concerns about the Commission's use of its resources in
relation to this proceeding.  Specifically, I wonder whether the "substantial interest in, and public
support for," supra at  para. 1, this rulemaking, relied upon so heavily in this item,  was not
partly generated by the Commission itself with its web site page for low power radio.  A brief
review of this page reveals that -- whatever one might think about low-power on the merits -- the
summary provided there was simply not an objective assessment of the rulemaking and the
issues that it raises.  For example, the summary described the possible advantages of low power
radio but made no mention of the potential drawbacks.  The summary also urged readers to file
comments in order to "successful[ly]" implement the proposals.  

     The provision of information about our activities is an important and laudable goal.  In
meeting this goal, however, we must be careful not to slant our presentation toward one point of
view, lest the Commission become an advocate instead of a neutral decisionmaker.  Of all
agencies, the FCC should not be attempting to shape and color public opinion on matters before
us by the dissemination of unbalanced information.  I believe that, if we are to enjoy the
appearance of fairness in the rulemaking process, we should not use government funds to
promote a particular result prior to even the issuance of an NPRM.   Not only does such
promotion damage our impartiality, but it puts private interest groups on the other side of the
issue in the position of having to expend resources to counter not just the efforts of opposing
parties but of the agency as well.

                                                       *    *    *

     In short, given the potential harmful effects on current licensees and their listeners, the
limited benefits of creating a low power radio service, the burdensome regulations placed on the
new stations, the new enforcement duties for the Commission, and the availability of alternatives
for communication, I do not believe that the pursuit of this proposal comports with our statutory
duty to" make available . .  a rapid, efficient, Nation-wide and world-wide wire and radio
communication service."  47 USC section 151 (emphasis added).