*Pages 1--1 from  Microsoft Word - 5413.doc*
 December  8,  2000 
 CONCURRING  STATEMENT  OF  COMMISSIONER  MICHAEL  K.  POWELL 


 Re:  In  the  Matter  of  Definition  of  Radio  Markets,  Notice  of  Proposed  Rulemaking 
 I  concur  in  the  decision  today  to  conduct  a  Notice  of  Proposed  Rulemaking 
 (NPRM)  for  the  limited  purpose  of  harmonizing  the  counting  methods  we  use  to 
 determine  both  the  size,  and  the  number  of  stations  in  a  radio  market  that  count  toward 
 the  ownership  cap  set  forth  in  Section  202(  b)(  1).  To  the  extent  that  this  NPRM 
 addresses  what  may  be  an  arbitrary  distinction  between  counting  methods,  I  support  its 
 issuance.  I  do,  however,  caution  the  Commission  to  avoid  using  the  rulemaking 
 process  as  a  means  to  circumvent  specific  statutory  provisions  and  effectuate  a  different 
 result  than  Congress  intended. 


 The  NPRM  asks  whether  the  Commission  should  adopt  a  different  (and  more 
 restrictive)  method  for  determining  the  relevant  market  because  our  current  definition 
 “may  undermine  the  structure  of  the  statute”  and  produce  results  “that  are  not  in  the 
 public  interest.”  My  single  greatest  problem  with  this  proposal  is  one  of  statutory 
 interpretation.  The  effect  of  eliminating  the  Commission’s  current  methodology  and 
 replacing  it  with  a  commercially  defined  market  (such  as  Arbitron)  would  be  to  shrink 
 markets,  and  thereby  substantially  limit  the  number  of  stations  one  could  own.  When 
 Congress  adopted  its  radio  ownership  caps,  Commission  regulations  defined  these 
 markets  in  a  particular  way.  That  way  was  the  law  of  the  land.  The  Arbitron  market 
 definitions  were  in  existence,  but  they  were  not  used  for  regulatory  purposes,  and 
 Congress  did  not  specifically  incorporate  them.  I  believe  proper  statutory  interpretation 
 would  lead  one  to  conclude  that  Congress  set  its  numerical  limits  against  the  market 
 definition  that  prevailed  in  regulation  at  the  time,  and  not  a  definition  that  had  not  been 
 used  for  this  purpose  previously.  1 


 For  this  reason,  I  concur  in  today’s  decision  for  the  sole  purpose  of  correcting 
 what  may  be  an  arbitrary  counting  methodology  for  determining  the  size  and  number  of 
 stations  one  may  own  in  a  local  radio  market. 


 1  “It  is  a  commonplace  of  statutory  construction  that  the  specific  governs  the  general,”  Morales  v.  Trans 
 World  Airlines,  504  U.  S.  374,  384-  385  (1992)  (citing,  Crawford  Fitting  Co.  v.  J.  T.  Gibbons,  Inc.,  482  U.  S. 
 437,  445  (1987). 
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