May 8, 1997

SEPARATE STATEMENT OF

COMMISSIONER RACHELLE B. CHONG

Re: Section 257 Proceeding to Identify and Eliminate Market Entry Barriers for Small Businesses: GN Docket 96-113, Report

In our Report today, we reaffirm our commitment to identifying and removing impediments experienced by women or minorities in the telecommunications market. In addition, we announce that we plan to conduct a comprehensive study of the participation of women and minority-owned businesses in the telecommunications market. Such a study is necessitated by the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, in which the Court held that the federal government's use of race-based criteria for decision-making must satisfy the requirements of strict scrutiny.⁽¹⁾

Although I am pleased to see that we are once again pledging to proceed with this Adarand study, I am concerned about the length of time that it has taken to get the study underway. In July 1995, when we eliminated our race and gender-based bidding preference for the PCS C Block auctions, we said that we were considering the means that we should take to develop a supplemental record that would support the use of race or gender based preferences.⁽²⁾ Since then, we have stated in a number of decisions that we were working to develop this record.⁽³⁾

In this Report, we have committed to complete the auction related portion of this study in time for our September 1997 section 309(j) report on auctions to Congress and to release the study findings later this year. I urge my colleagues to join with me in making efforts to get this important study underway and completed without further delay.

1. 115 S. Ct. 2097. As we recognized in the Notice in this proceeding, because a federal minority program has not been subject to strict scrutiny pursuant to Adarand, judicial guidance regarding the strict scrutiny standard thus far is limited to the decision in Richmond v. J.A. Croson Co., in which a state program was evaluated under strict scrutiny. 488 U.S. 469 (1989). Under Croson remedial relief is permitted on the basis of "evidence of a pattern of individual discriminatory acts . . . supported by appropriate statistical proof." 488 U.S. at 499.

2. Implementation of Section 309(j) of the Communications Act -- Competitive Bidding, Sixth Report and Order, 11 FCC Rcd 136, 137 (1995).

3. See, e.g., Amendment of Parts 20 and 24 of the Commissions Rules -- Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Cap, Report and Order, 11 FCC Rcd 7824, 7834 (1996).