FCC 3-2 Allows Radio Programming Duplication

The FCC approved eliminating rules restricting same-market, commonly owned radio stations from airing duplicate programming, 3-2 Thursday. It eliminated restrictions for both bands, as expected (see 2008040063). The draft applied only to AM.

“As originally drafted, this decision would help alleviate some of the strain on these stations and experiment with rolling back this rule in the AM band,” said Commissioner Jessica Rosenworcel. She and Commissioner Geoffrey Starks concurred on the rule changes for the AM band and dissented on the rollback for FM. “The majority doesn’t explain the dramatic change of heart, nor does it explain how the benefits to FM broadcasters outweigh the public interest,” said Starks. “Broadcasters have no incentive to limit their appeal and thus their revenues by simulcasting the same programming on multiple stations for long periods of time so the benefits of providing additional flexibility outweigh any costs,” said an FCC release.

The pandemic “has shown that increased flexibility to rebroadcast programming can help ensure continuity of operations, promote employee safety, and provide emergency information to residents,” said Commissioner Brendan Carr, who proposed the changes from the draft. The draft included a waiver process for FM stations to benefit from the rule, Starks noted. “When time is of the essence, the last thing broadcasters need to worry about is begging the FCC for permission to serve their local markets,” said Carr.

Rosenworcel said the changes were proposed in the previous 36 hours. Chairman Ajit Pai’s statement doesn’t mention the FM band. It referenced improvements to AM problems such as sound quality, along with reducing regulatory burdens and increasing flexibility. “Eliminating the radio duplication rule for AM stations, as we do today, could help further all three objectives,” said Pai. This is “another decision that rushes ahead without doing the due diligence needed to consider the impact on localism, competition and diversity,” Rosenworcel said. Commissioner Mike O’Rielly didn’t provide a statement, and offered no remarks Thursday (see 2008060062).

This is “really the only outcome that makes sense,” tweeted NAB General Counsel Rick Kaplan. “It's not the job of stakeholders to justify why rules should be repealed; rather, FCC has to explain why they are still relevant/in the public interest.” The order is “very very very concerning,” tweeted United Church of Christ attorney Cheryl Leanza. A similar policy for noncommercial stations “created ghost programming on non-commercial FM stations around the country,” she said.

There are very few situations where a broadcaster that owns multiple same-market FM stations would simulcast the same programming over them, said radio attorney Richard Hayes in an interview. He said struggling broadcasters forced to cut costs due to COVID-19 might do it to keep their stations on air with a lessened workforce, but he wasn’t aware of any seeking to do so. “It’s the furthest thing from their mind,” he said. A station group wouldn’t get twice the money from ads doubled on two stations, said radio attorney Anthony Lepore in an interview.

The order is primarily useful to AM stations in large geographical areas, where one outlet mightn't have enough power to reach the entire area, he said. The order will also aid AM stations seeking to convert to all digital, Lepore said: Since not all receivers can pick up all digital AM, the lack of duplication restrictions would allow AM owners to simulcast their station on analog during a transition.