Attachment 1992Comments of The

This document pretains to SAT-LOA-19900518-00036 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1990051800036_1060514

NOV 1 3 1992 Before the FEDERAL COMMQQ;§§TIONS COMMISSION FEDERALCOMMUNICATIONS COMMISSION \W g@&n%“D.C., 20554 OFFICEOF THE SECRETARY In the Matter of Application of CFile Nos. 49/50—DSS—P/LA—90 Satellite CD Radio, I 58 /59—DSS—AMEND—90 44 / 45—DSS—AMEND—92 w hiz nz s For a Digital Audio Radio Satellite System To: The Commission COMMENTS OF THE RADIO OPERATORS CAUCUS Pursuant to a public notice of the Commission released October 13, 1992 (Report No. DS—1244), the Radio Operators Caucus (ROC) hereby comments on the above—captioned application of Satellite CD Radio, Inc., for a digital audio radio service (DARS) satellite system.l/ ROC submits that processing of the captioned application and acceptance of competing applications at this time would be grossly premature, wasteful of the resources of the Commission and private parties, contrary to sound administrative practice, and prejudicial to development of a sound framework of rules and policies to govern DARS. The acceptance of the subject application for filing comes at a time when the Commission has yet to adopt the first policy or rule governing DARS. Rather than rush to implement an array of rules and policies in this new and extraordinarily dynamic 1/ ROC is an informal group of more than 40 radio station owners with over 300 stations in more than 90 markets throughout the United States.

area, the Commission has wisely chosen first to engage in information gathering. Toward that end, the Commission initiated an inquiry in August of 1990,2/ ana only last week it released a Further Notice of Inquiry in order to obtain updated information.s/ Thus the Commission recognizes that it requires additional input before it can even begin considering the creation of a reqgulatory framework governing DARS. Acceptance of the above—captioned application is manifestly inconsistent with this careful and deliberate approach. The issues which must be resolved prior to any establishment of DARS are many and difficult. Fundamental is the question whether DARS should be established at all and, if so, whether it should be a satellite service, a terrestrial service, or a "hybrid" of both. The selection made among these options will in turn give rise to such questions as whether service should be on a subscription or advertiser—supported basis and whether terrestrial service can or should be provided in the existing AM 2/ In the Matter of Amendment of the Commission‘s Rules with Regard to the Establishment and Reqgulation of New Digital Audio Radio Services, 5 FCC Red. 5237 (1990). 3/ Notice of Proposed Rule Making and Further Notice of Inquiry (NPRM/FNOI), GEN Docket No. 90—357 (released November 6, 1992). The sole DARS rule making proceeding initiated by the Commission thusfar was released only a week ago, together with the Further Notice of Inquiry, and relates only to the allocation of spectrunm space for a possible satellite service, described by Commissioner buggan as a "limited step" designed to implement the allocation made at the 1992 WARC. The Commission expressly indicated that it was not soliciting comments on "regulatory policies, service rules, technical standards and consideration of pioneer‘s preference requests," which would "be the subject of future action." (NPRM/FNOI at 4@ 14).

and FM bands. Inextricably intertwined with these issues is the potential impact of DARS on the existing radio industry and the "localism" which is its hallmark. Assuming that the decision is made to establish DARS, the Commission will then have to decide on a regulatory regime, set technical and legal standards, and address the usual array of issues presented in the creation of a new communications service. With the foregoing and other critical issues yet to be resolved, processing of the subject application would represent a grossly inefficient use of the Commission‘s resources at a tinme when those resources are already strained. Whatever efforts are expended in the processing of the application may well have to be discarded as a result of the rules and policies ultimately adopted governing DARS. Indeed, the above—referenced public notice of acceptance for filing explicitly recognizes this likelihood, stating in part: "Applicants filing by the cut—off date will be afforded an opportunity to amend their applications, if necessary, to conform with any requirements and policies that may be adopted for digital audio radio service satellite systems." In addition to draining the Commission‘s resources, processing at this time will also require substantial efforts by competing applicants and other interested parties which may ultimately prove to be of little or no benefit. Processing of the application would also create a significant risk of skewing the Commission‘s deliberations on DARS. The process of determining whether to establish the new

service, and if so when and in what form, could well be— influenced by the fact that applicants are already expending resources on satellite proposals at the Commission‘s express invitation. Given the potential of DARS for disruption of the existing radio industry, it ill behooves the Commission to take a precipitous action which could color its future deliberations. Finally, there is simply no compelling need for immediate processing of the application. Prior to the 1992 WARC, the applicant‘s principal argument for processing of the application was that grant of an authorization would facilitate deliberations at that conference.4/ With those deliberations completed, that argument (whatever its force may have been) has become moot, and no circumstances exist which justify contamination of the Commission‘s otherwise—judicious approach to DARS by premature action on the subject application. In light of the foregoing, ROC respectfully submits that the subject application should be returned, and the "cut—off notice" rescinded. If that is not to be done, action on the application and any competing applications should be deferred, pending adoption of rules and policies (if any) governing DARS. Upon 4/ See, e.q., letter of November 1, 1991, to the Secretary of the Commission from Martin Rothblatt, Chairman and CEO of the applicant.

adoption of any such rules and policies, interested parties should be given a further opportunity to comment on the applications. Respectfully submitted, RADITO ERATORS CAUCUS JQEE/E. Fiorini IIL GARDNER, CARTON & DOUGLAS 1301 K Street, N.W. Suite 900, East Tower Washington, D.C. 20005 (202) 408—7159 November 13, 1992 Its Attorney 65865—001\41847

CERTIFICATE OF SERVICE I, Elizabeth A. Fertig, a secretary in the law offices of Gardner, Carton & Douglas, do hereby certify on November 13, 1992, a true copy of the foregoing "Comments of the Radio Operators Caucus" was sent by United States First Class mail, postage prepaid to the following: Mr. Robert D. Briskman President Satellite CD Radio, Inc. 1001 22nd Street, N.W., 6th Floor Washington, D.C. 20037—1817 Elizabeth A.


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Document Modified: 2014-09-08 11:23:58
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