04/02/01 Separate Statement of Commissioner Harold Furchtgott-Roth

April 2, 2001

Statement of Commissioner Harold W. Furchtgott-Roth Approving in part, Dissenting in part

Creation of a Low Power Radio Service, Second Report and Order

It is incumbent upon this Commission to implement the new statutory requirements for LPFM service in a manner consistent with the intent of Congress. That feat has been accomplished here. On this point, I find that the Second Report and Order is headed in the right direction.

However, the Commission should have issued a Notice of Proposed Rulemaking (“NPRM”) asking for comment on the new statutory directives. The urgency in establishing the LPFM service cannot, and does not, overcome the need to follow the rulemaking requirements found in the Administrative Procedures Act. In any instance, a public dialogue and debate on the relevant provisions would have helped elucidate the scope and substance of the law.

In addition, the Commission should have suspended its current LPFM requirements as it examines the meaning of the statute. This step would have allowed the Commission to reconsider its LPFM rules in light of Congress’ recent actions.¹ A more harmonious LPFM regime would have resulted.

Since the Commission did not issue an NPRM or suspend its current LPFM rules, I must dissent, in part.

I note that the Commission found it necessary to suspend the merger deadlines imposed on AT&T because a court decision struck down the cable horizontal ownership rules upon which the conditions were based. See AT&T Suspension Order, FCC 01-95 (rel. March 16, 2001) in response to Time Warner Entertainment v. FCC __ F3d. __ (D.C. Cir. 2001). The Commission should have treated the instant situation in a similar manner because the statutory directives significantly altered the prior policy stance of this agency.