*Pages 1--1 from  Microsoft Word - 5412.doc*
 December  7,  2000 
 In  the  Matter  of  Definition  of  Radio  Markets,  Notice  of  Proposed  Rulemaking 
 Separate  Statement  of  Commissioner  Harold  W.  Furchtgott-  Roth 
 I  concur  in  this  rulemaking  for  the  limited  aim  of  rationalizing  our  arguably 
 arbitrary  and  capricious  methodology  of  counting  radio  stations  for  purposes  of  section 
 202(  b)(  1).  Cf.  Joint  Statement  of  Commissioners  Ness  and  Tristani,  KBYB(  FM),  El 
 Dorado,  Arkansas,  13  FCC  Rcd  15685  (1998)  (explaining  that  it  makes  no  sense  to  count 
 stations  as  in  the  relevant  market  for  the  denominator  but  not  the  numerator  of  the  202(  b) 
 calculation).  My  purpose  is  not,  as  this  Notice  of  Proposed  Rulemaking  unfortunately 
 suggests,  to  change  our  definition  of  “markets”  in  order  to  cut  back  on  the  concentration 
 levels  that  Congress  expressly  set  in  the  1996  Telecommunications  Act. 


 Nor  is  the  NPRM  correct  in  its  suggestion  that  Congress  could  not  have  known  or 
 understood  the  accepted  administrative  meaning  of  that  term,  and  thus  the  actual  import 
 of  its  revision  of  the  radio  limits,  when  it  changed  the  radio  market  limits  in  the 
 Communications  Act.  To  the  contrary,  “it  is  well  established  that  when  Congress  revisits 
 a  statute  giving  rise  to  a  longstanding  administrative  interpretation  without  pertinent 
 change,  ‘the  congressional  failure  to  revise  or  repeal  the  agency’s  interpretation  is 
 persuasive  evidence  that  the  interpretation  is  the  one  intended  by  Congress.  ’”  CFTC  v. 
 Schor,  478  U.  S.  833,  845  (1986)  (quoting  NLRB  v.  Bell  Aerospace  Co.,  416  U.  S.  267, 
 274-  75  (1974));  see  also  FDIC  v.  Philadelphia  Gear  Corp.,  476  U.  S.  426,  436-  437 
 (1986);  Zenith  Radio  Corp.  v.  United  States,  437  U.  S.  443,  457  (1978). 


 Based  on  this  narrow  understanding  of  purpose  –  viz.,  to  eliminate  what  seems  to 
 be  an  irrational  counting  methodology,  not  to  change  the  definition  of  a  “market”  for 
 results-  oriented,  counter-  statutory  purposes  –  I  concur  in  this  rulemaking.  I  take  no 
 position,  however,  as  to  how  to  resolve  the  numerator-  denominator  inconsistency,  and  I 
 look  forward  to  reviewing  the  comments  on  this  matter. 
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