Late this afternoon (June 10, 2024), the full Federal Communications Commission released a document granting a Petition for Reconsideration that was jointly filed by REC Networks (REC), the musicFIRST Coalition (mFC) and the Future of Music Coalition (FMC) to reinstate §73.3556 of the FCC Rules in respect to the duplication of programming by FM radio stations.
During the Pai administration, the FCC proposed to eliminate a rule that stated that commercial broadcast stations (AM and FM) cannot devote more than 25 percent in its average broadcast week to programs that duplicate any station in the same service which is commonly owned or which there is a time brokerage agreement if the principal community contours (70 dBu city grade for FM and 5 mV/m for AM) of the stations overlap and the overlap constitutes more than 50 percent of the total prinicipal community contour service area of either station.
During the rulemaking proceeding, REC did not oppose the elimination of the duplication rule for AM stations as the existence of the anti-duplication rule would hamper the potential progress in the development of MA3 all-digital AM radio. However, we staunchly opposed the elimination of the rule in respect to FM stations. Unlike AM stations, there is no “all-digital” FM service and by permitting duplication on FM, it would further reduce programming diversity, thus running counter to REC’s objective for radio to provide “more choices and more voices”.
Back in 2020, three weeks prior to the release of the Report and Order, the Commission released a circulation draft, which is pretty common that suggested that the FCC was only going to eliminate the rule for AM, but not FM. However, like we saw with the possible elimination of the FM to TV6 protection requirements in MB Docket 03-185, there was a huge shift in direction based on ex parte presentations made by the National Association of Broadcasters in the two weeks that followed. (Presentations are prohibited within 7 days of the Open Meeting.)
Once the original Report and Order was released back in 2020, the FCC had eliminated the rule for both AM and FM radio. This prompted REC to reach out to our partners at musicFIRST and Freedom of Music to recommend a Petition for Reconsideration. Our joint attorney drafted and filed the Petition for Reconsideration. The team was involved in several ex parte presentations including an in-person presentation where I traveled to DC to meet with Chairwoman Rosenworcel along with representatives of the music industry.
The adoption of the Order on Reconsideration, which actually took place on June 5, 2024, was passed along party lines with Commissioner Carr and Simington dissenting. Carr issued a statement. Chair Rosenworcel also issued a statement.
REC Networks would like to thank our friends at both the musicFIRST Coalition and Future of Music Coalition for providing the resources needed to fight this attempt to reduce programming diversity on finite broadcast spectrum and doing much of the heavy lifting during the reconsideration process. Credit is also due to our friends at Common Frequency and Kern Community Radio, who also played a significant role in making significant arguments to help promote the overturning the repeal of this important rule.
Like with Net Neutrality, the elimination of this rule can come back if we experience a shift in the makeup of the five FCC members. If the other party takes the majority, I would not put it past them.
Commercial FM stations that are currently engaged in duplication that exceed the 25 percent criteria will have a grace period of six months from when the rule change goes into effect, which will be 30 days after publication in the Federal Register. FM stations can request a waiver and such stations are strongly encouraged to request the waiver within the first ninety days after the rule change goes into effect.
The FCC’s recent decision here is a victory for “more choices and more voices” on FM radio and is consistent with keeping radio relevant and carrying on the 100-year+ tradition as being the “best app ever for audio programming”.
How does this impact commercial FM radio?
Any FM stations that are commonly owned or in a time brokerage agreement that are substantially (50% or greater) overlapped at the 70 dBu (3.16 mV/m) city grade contour may not duplicate more than 25% of its programming over the overlapped stations. Stations that are currently not in compliance will have 6 months from the date which is 30 days after the final rule is published in the Federal Register to come into compliance. Those needing a waiver should make that request within 90 days of the effective date of the rule.
How does this impact AM radio?
This makes no changes to AM radio. Commonly owned and time brokerage AM stations with at least 50% overlap at the 5 mV/m contour may continue to duplicate more than 25 percent of its weekly programming. REC supports this duplication because of the unique nature of AM broadcasting and to help promote the transition to all-digital MA3 HD Radio.
How does this impact noncommercial educational FM (NCE-FM) stations?
There is no impact to NCE-FM. This includes stations operating on “commercial” FM allotments but operating noncommercially. NCE-FM has never had a duplication rule.
How does this impact Low Power FM (LPFM) stations?
There is no direct impact to LPFM stations by this rule, other than the overall benefit of assuring radio remains relevant with fewer commercial stations duplicating the same programming on different ends of the dial. LPFM stations are currently prohibited from rebroadcasting the signal of a full-service radio broadcast station. This rule is completely independent of the anti-duplication rule for commercial FM, or its previous repeal. While REC is aware that some LPFM stations are duplicating programming, we do warn stations that FCC rules for LPFM prohibit any kind of management, operating or time brokerage agreement between two LPFM stations and any decisions to simulcast should be made independently at the board levels of each station and that there is no consideration of any kind being exchanged between stations as a result.
How does this impact FM translators?
FM translators already have a rule (§74.1232(b)), which states that more than one translator may be licensed to the same applicant, whether or not such translators service substantially the same area, upon an appropriate showing of technical need for such stations. The recent FCC action does not impact FM translators, only commercial full-service stations.
About REC Networks
Founded in 1984, REC Networks has been entertaining, informing and supporting the communities that we serve. Since 1998, REC has been deeply involved in the creation and the support of the Low Power FM broadcast service, which promotes our larger goal of providing more access to spectrum by the common citizen. In addition to providing regulatory advocacy to LPFM and other “citizen’s access to spectrum” issues, REC provides professional services to LPFM, full-service FM and FM translator stations for various filings with the FCC. For more information about REC, visit https://recnet.com or contact us at 202 621-2355.
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Edited June 12, 2024 to add clarification to the impacts to FM translator stations.
