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 Federal  Communications  Commission  FCC  03-  266 
 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Applications  of  Savannah  College  of  Art  and  Design  and  Diocese  of  Savannah  for  Construction  Permit  and  License  in  the  Instructional  Television  Fixed  Service  on  the  G-  Group  Channels  at 
 Bloomingdale,  Georgia  and  A  Group  Channels  at  Savannah,  Georgia  (File  No.  BPLIF-  951020AN) 
 I  fully  support  the  action  taken  by  the  Commission  in  this  Memorandum  Opinion  and  Order.  Indeed,  it  is  the  only  decision  that  could  be  reached  consistent  with  the  Commission’s  Rules,  long-  standing  precedent, 
 and  the  public  interest.  The  Diocese  and  SCAD  filed  applications  for  ITFS  channels  that  they  knew  were  not  available  for  licensing  at  that  time  because  the  Commission  had  previously  assigned  those  ITFS 
 channels  to  the  Pembroke  Stations.  In  order  for  the  Commission  to  grant  those  applications,  we  would  have  to  ignore  two  fundamental  rules  –  the  rule  against  contingent  applications,  and  the  rule  that  requires 
 applicants  to  show  at  the  time  they  initially  file  their  applications  that  they  will  not  cause  interference  to  existing  licensees  or  previously  proposed  stations. 


 First,  the  Savannah  Applications  clearly  state  that  their  “acceptability”  is  contingent  on  the  Commission’s  willingness  to  grant  a  petition  to  deny  that  was  then-  pending  against  applications  filed  by  the  Pembroke 
 Permittees  to  reinstate  their  construction  permits.  The  Commission’s  Rules,  however,  have  long  provided  that  “contingent”  applications  will  not  be  accepted  for  filing.  The  reason  for  the  rule  against  contingent 
 applications  is  that  it  avoids  burdening  the  Commission’s  resources  with  applications  that  cannot  be  processed  until  the  applicable  contingencies  are  resolved,  which  may  never  occur.  In  fact,  that  is 
 precisely  what  occurred  here. 
 Second,  under  the  Commission’s  Rules,  ITFS  licensees  and  permittees  (like  virtually  all  radio  station  licensees,  except  those  that  operate  on  a  secondary  basis)  are  given  authorizations  that  entitle  them  to 
 specified  levels  of  protection  from  harmful  interference.  The  Commission’s  Rules  therefore  require  new  ITFS  applicants  such  as  the  Diocese  and  SCAD  to  demonstrate,  at  the  time  of  filing,  that  their  proposed 
 operations  will  not  cause  interference  to  existing  licensees  and  permittees.  In  fact,  in  its  filing,  the  Diocese  acknowledged  that  their  applications  would  have  resulted  in  harmful  interference  to  the 
 operations  of  previously  proposed  ITFS  stations  (i.  e.,  the  Pembroke  Stations). 
 I  fully  support  and  welcome  the  expeditious  introduction  of  additional  ITFS  services  and  regret  the  procedural  errors  that  were  made  in  this  case.  However,  the  facts  of  this  case  bar  us  from  supporting  the 
 award  of  the  subject  licenses  and  ensuring  the  productive  use  of  this  spectrum.  The  Commission  cannot  legally  reinstate  an  application  that  was  flatly  inconsistent  with  its  rules.  It  simply  is  not  in  the  public 
 interest  to  sacrifice  the  principles  of  fair  play  on  the  hope  and  expectation  that  petitioners,  who  have  not  followed  the  rules,  might  begin  service  in  the  near  term.  Such  an  approach  would  only  encourage  parties 
 in  the  future  to  submit  defective  applications  under  the  most  tenuous  of  circumstances,  on  the  gamble  that  the  existing  impediments  to  a  grant  (here,  a  mutually  exclusive  –  and  previously  granted  –  permit)  will  be 
 removed  on  a  nunc  pro  tunc  basis  sometime  before  Commission  staff  acts  on  the  defective  application. 
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