Amendment of the Commission's Rules Regarding Duplication of Programming on Commonly Owned Radio Stations; Modernization of Media Initiative
| Published date | 22 October 2020 |
| Citation | 85 FR 67303 |
| Record Number | 2020-21319 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 85 Issue 205 (Thursday, October 22, 2020)
[Federal Register Volume 85, Number 205 (Thursday, October 22, 2020)]
[Rules and Regulations]
[Pages 67303-67309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21319]
[[Page 67303]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 19-310 and MB Docket No. 17-105; FCC 20-109; FRS 17093]
Amendment of the Commission's Rules Regarding Duplication of
Programming on Commonly Owned Radio Stations; Modernization of Media
Initiative
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission eliminates the radio
duplication rule, which restricts the duplication of programming on
commonly owned stations operating in the same geographic area, for both
AM and FM stations to reflect technological and marketplace changes
since the current version of the rule was adopted in 1992. This
approach will strike an appropriate balance between fostering our
public interest goals of promoting competition and diversity and
affording broadcast radio licensees greater flexibility to address
issues of local concern in a timely fashion, facilitate digital
broadcasting by AM stations, and ultimately allow stations to improve
service to their communities.
DATES: This rule is effective October 22, 2020.
FOR FURTHER INFORMATION CONTACT: Jamile Kadre, Industry Analysis
Division, Media Bureau, [email protected], (202) 418-2245.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in MB Docket Nos. 19-310 and 17-105, FCC 20-109, that was
adopted August 6, 2020 and released August 7, 2020. The full text of
this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-20-109A1.pdf. Documents will be
available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format, etc.) and
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) may be requested by sending an email to
[email protected] or calling the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. In this Report and Order (Order), we eliminate section 73.3556
of the Commission's rules (the radio duplication rule) to reflect
technological and marketplace changes over the past three decades. As
noted in the underlying Notice of Proposed Rulemaking (NPRM), there
have been significant changes in the broadcast radio industry since the
current version of this rule, which restricts the duplication of
programming on commonly owned stations operating in the same geographic
area, was adopted in 1992. By today's Order, we eliminate the radio
duplication rule for both AM and FM stations. This approach will strike
an appropriate balance between fostering our public interest goals of
promoting competition and diversity and affording broadcast radio
licensees greater flexibility to address issues of local concern in a
timely fashion, facilitate digital broadcasting by AM stations, and
ultimately allow stations to improve service to their communities.
Through this Order, we continue our efforts to modernize our rules and
modify or eliminate outdated and unnecessary media regulations.
Background
1. The Commission's broadcast radio programming duplication rules
have evolved over time consistent with changes in the broadcast radio
market. The Commission first limited radio programming duplication by
commonly owned stations serving the same local area in 1964 by
prohibiting FM stations in cities with populations over 100,000 from
duplicating the programming of a co-owned AM station in the same local
area for more than 50% of the FM station's broadcast day. The
Commission observed that it had never regarded program duplication as
an efficient use of FM frequencies; instead, it had allowed program
duplication as, ``at best, . . . a temporary expedient to help
establish the FM service.'' Accordingly, the Commission envisioned ``a
`gradual' process to end programming duplication once the number of
applicants seeking licenses exceeded the number of vacant FM channels
available in large cities.'' At that time, the Commission sought to
minimize the economic impact to radio broadcasters from limiting
programming duplication. In particular, the rule allowed for waivers
upon a showing that programming duplication would be in the public
interest. It further provided that compliance would be monitored
through the license renewal process.
2. In 1976, the Commission tightened the radio duplication
restriction to limit FM stations to duplicating only 25% of the average
program week of a co-owned AM station in the same local area if either
the AM or FM station operated in a community with a population of over
25,000. Based on its 12 years of experience observing the effects of
the radio duplication rule, the Commission delayed implementation of
the tightened 25% limit on smaller cities for approximately four years,
establishing interim limits that prohibited FM stations from
duplicating more than 25% of average broadcast week programming of a
commonly owned AM station in communities over 100,000 and 50% of
programming of a commonly owned AM station in communities over 25,000
but under 100,000. At that time, the Commission observed that ``the
public does not have to depend on non-duplication to add diversity''
when new broadcasting frequencies remained available. But given ``the
virtually complete absence of available [FM] channels as well as the
strengthened economic position of FM'' stations, the Commission adopted
a tighter limit, finding that ``the greatly diminished availability of
FM channels in communities of any substantial size'' could inhibit
programming diversity. It also noted again ``the inherent wastefulness
of duplication,'' i.e., that duplication of programming was an
inefficient use of spectrum. This change also made the city size
criterion apply both to the size of the city of the AM station as well
as the size of the city of the FM station, rather than considering the
size of the city of the FM station alone, as the previous rule had.
3. In 1986, in response to a petition for rulemaking seeking to
exempt late-night hours when determining compliance with the radio
duplication rule, the Commission eliminated the cross-service radio
duplication rule entirely. It found that FM service had developed
sufficiently to eliminate the rule and that FM stations were fully
competitive, obviating the need to foster the development of an
independent FM service through a requirement for separate programming.
The Commission further found that the rule was no longer necessary to
promote spectrum efficiency because market forces would lead stations
to provide separate programming where economically feasible and, where
separate programming was not economically feasible, duplication was
preferable to a station's reducing programming or going off the air
entirely in order to comply with the rule. In reaching this conclusion,
the Commission noted that duplication could save costs for many AM
stations experiencing economic
[[Page 67304]]
difficulties due to listeners switching to FM.
4. In 1992, as part of a broad proceeding reviewing its national
and local radio ownership rules, the Commission adopted a new radio
duplication rule limiting the duplication of programming by commonly
owned stations or stations commonly operated through a time brokerage
agreement in the same service (AM or FM) with substantially overlapping
signals to 25% of the average broadcast week. Principal community
contours are defined as ``predicted or measured 5 mV/m groundwave for
AM stations and predicted 3.16 mV/m for FM stations.'' A time brokerage
agreement generally involves the sale by one radio licensee of blocks
of time to a broker who then supplies programming to fill that time and
sells the commercial spot advertising to support it. In setting the
limit on programming duplication at 25% of the total hours of a
station's average weekly programming, the Commission sought to strike
an appropriate balance between affording stations the ability to
repurpose costly programming and continuing to foster competition,
diversity, and spectrum efficiency in the local market. The Commission
saw no public benefit from allowing commonly owned same-service
stations in the same local market to duplicate programming more than
25%, observing that, ``when a channel is licensed to a particular
community, others are prevented from using that channel and six
adjacent channels at varying distances of up to hundreds of kilometers.
The limited amount of available spectrum could be used more efficiently
by other parties to serve competition and diversity goals.'' The
Commission also incorporated time brokerage agreements in the rule
because it was concerned about the possibility that ``widespread and
substantial time brokerage arrangements among stations serving the same
market, in concert with increased common ownership permitted by our
revised local rules, could undermine our continuing interest in
broadcast competition and diversity.'' The Commission concluded,
however, that some programming duplication had benefits, stating ``we
are persuaded that limited simulcasting, particularly where expensive,
locally produced programming such as on-the-spot news coverage is
involved, could economically benefit stations and does not so erode
diversity or undercut efficient spectrum use as to warrant
preclusion.''
5. As part of its continuing commitment to modernizing its media
regulations, the Commission issued the NPRM initiating this proceeding
in November 2019, seeking comment on the radio duplication rule and
whether it should be retained, modified, or eliminated. As we noted in
the NPRM, the broadcast industry has changed significantly since the
Commission adopted the current radio programming duplication rule in
1992. In particular, significant growth in the number of radio
broadcasting outlets, the advent of digital HD Radio, and the evolution
of new and varied formats in which to disseminate programming (i.e.,
digital satellite radio, streaming via station websites, and mobile
applications) have led to greater competition and programming diversity
in radio broadcasting. Accordingly, we asked commenters to address
several issues, including the impact of market forces on programming
consolidation and the impact of the radio duplication rule on the
Commission's public interest goals of localism and diversity, as well
as on spectrum efficiency. We also sought comment on whether the
Commission's prior rationale for eliminating the cross-service
duplication programming rule--that duplication is preferable to
curtailing programming or going off the air entirely where separate
programming is not economically feasible--applies equally to the same-
service duplication rule. We sought input on the benefits of allowing
some level of programming duplication, as well as potential
modifications to the rule. In addition, we asked whether the rule
should treat stations in the AM service and the FM service differently
in light of the particular economic and technical challenges facing AM
stations. Finally, we asked commenters to discuss potential costs and
benefits of modifying or eliminating the rule.
6. Four parties filed comments in response to the NPRM and two
parties filed reply comments. Though the number of commenters in the
proceeding was small, commenters represent a cross-section of the
broadcast industry and proffer a variety of arguments both supporting
and opposing changing the rule. Bryan Broadcasting Corporation
supports, at a minimum, elimination of the rule as pertains to AM
stations when one station transitions to all-digital transmission and
one remains operating in analog and takes no position on the rule as
pertains to the FM service. Common Frequency, Inc. opposes elimination
of the rule as to both AM and FM stations, National Association of
Broadcasters supports elimination of the rule as pertains to both AM
and FM stations, and REC Networks supports partial elimination of the
rule as pertains to AM stations and opposes elimination of the rule as
pertains to FM stations. Kern Community Radio opposes elimination of
the radio duplication rules as to both AM and FM stations and offers
several proposals for strengthening the rule. The NPRM also sought
comment on whether the radio duplication rule could implicate the First
Amendment to the U.S. Constitution. However, no commenters addressed
this issue.
Discussion
7. As discussed below, we eliminate section 73.3556 of our rules in
order to provide radio broadcasters with increased flexibility in
programming decisions. We conclude that the costs of continued
regulation of radio programming duplication exceed the benefits of
regulation, which we believe is no longer necessary. We find that the
unique technical and economic challenges that AM broadcasters currently
confront, coupled with the desire to facilitate an AM digital
broadcasting transition, warrant eliminating the rule for AM licensees
in order to provide them with greater flexibility, as advocated by
several commenters. In so doing, we note that currently, AM stations
may operate in a ``hybrid'' mode, transmitting both an analog and a
digital signal using In-Band On-Channel (IBOC) technology. IBOC refers
to the method of transmitting a digital radio broadcast signal centered
on the same frequency as the AM or FM station's present frequency. Like
FM band transmissions using IBOC technology, AM band transmissions
place the digital signal in sidebands above and below the existing AM
carrier frequency. By this means, the digital signal is transmitted in
addition to the existing analog signal. In both instances, the digital
emissions fall within the spectral emission mask of the station's
channel. The present IBOC system is referred to as a ``hybrid'' because
it is neither fully analog nor fully digital. During hybrid operation,
existing receivers continue to receive the analog (non-digital) signal,
while newer receivers incorporate both modes of reception,
automatically switching to receive either the analog or the digital
signal. Recently, the Commission has proposed to permit AM stations to
operate in all-digital mode, rather than requiring that they maintain
an analog signal alongside the digital signal in hybrid operations.
[[Page 67305]]
8. Similarly, we find that the benefits of eliminating the rule for
FM licensees outweigh any potential negative impacts on public interest
objectives of competition, program diversity, and spectrum efficiency
for which the radio duplication rule was originally adopted. For these
reasons, we find that the current rule no longer strikes the right
balance between affording stations the ability to repurpose programming
and continuing to foster competition, diversity, and spectrum
efficiency in the local market.
9. Because we eliminate the rule, we decline to adopt CFI's
proposals to (1) extend the programming duplication signal coverage
area for AM stations and (2) assess duplication in the AM service on a
case-by-case basis. We also decline to adopt (1) Kern's proposal that
we extend the overlap areas of full-service stations; (2) REC's
proposal that the Commission impose upon AM stations entering such
duplication arrangements a requirement to surrender any cross-service
FM translators after a certain time period; and (3) CFI's similar
proposal to limit the number of FM translators licensed to a duplicated
AM station or disallow use of FM translators by a duplicated AM
station. The record does not support these proposals. In particular,
commenters fail to explain why their proposals would be sufficient to
alleviate industrywide pressures that make continued application of the
rule overly burdensome. Additionally, having concluded that
industrywide relief from non-duplication restrictions is warranted, we
decline to require potentially struggling licensees to endure the
administrative costs and burdens of seeking individual waivers that
otherwise might be required were we to retain at least some radio
duplication restrictions. Further, because we eliminate the rule for
the FM service, we decline to adopt proposals to tighten or expand the
radio duplication rule for the FM service, as requested by some
commenters, specifically CFI's proposal that we extend the programming
duplication signal coverage area for FM stations and Kern's proposal
that we expand the radio duplication rule to include extending the
overlap areas of full-service stations. As the commenters have provided
only bare assertions as to these proposals, offering no specific
evidence or analysis, we reject these suggestions that we expand the
existing rule instead of eliminating it. We also decline to adopt
proposals to expand the radio duplication rule to cover translators and
NCE stations, as we find these proposals to be outside the scope of
this proceeding. We similarly decline to address various other
proposals, including NAB's request to modernize the translator
duplication rule, CFI's recommendation to change the translator rule
and have broadcasters specify the origin of programming received by
satellite, and various suggested changes from Kern because they are
likewise outside the scope of this proceeding.
10. AM Service. We conclude that the radio duplication rule no
longer serves the public interest as applied to commonly owned AM
stations in light of current marketplace conditions. As we have noted
in several recent proceedings, the AM broadcasting service faces
persistent interference issues that have hampered the service and
frustrated both consumers and licensees. In particular, the service has
faced an increase in the level of environmental and man-made noise over
time, which has increased the amount of interference in the band. In
addition, AM stations continue to be more difficult to operate and more
expensive to maintain than FM stations, requiring larger and more
complex physical plants, which are increasingly under pressure in urban
areas.
11. Moreover, the AM service continues to contend with lower
quality non-stereo audio and declining listenership. The technical
challenges that the AM service has long faced have been compounded in
recent decades by the continued predominance of FM radio in the
broadcast industry and the introduction of alternative sources of
higher-quality audio signals. These technical challenges lead to
economic challenges, as the interference issues and lower-quality audio
endemic to analog AM radio may drive down listenership, further
reducing stations' ability to invest in order to meet these technical
challenges. Additionally, the impact of the COVID-19 pandemic is
exacerbating the economic challenges that many AM stations are already
confronting. We find that permitting the additional flexibility of
simulcasting may be useful to AM stations that are financially
struggling. As the Commission observed in addressing this issue in the
past, ``where separate programming is not economically feasible,
duplication of AM service is preferable to a struggling station
reducing programming or going off the air entirely to comply with the
rule.'' Given these ongoing challenges, we conclude that the AM service
would benefit from greater flexibility in making programming decisions
and, in particular, from having the option to potentially repurpose
costly programming on commonly owned stations.
12. Additionally, although the foregoing reasons alone provide a
sufficient basis to eliminate the radio duplication rule for AM
stations, we also agree with the majority of commenters in this
proceeding that eliminating the radio duplication rule could help to
ease the AM service transition from analog to digital broadcasting,
both for stations and their audiences. As BBC observes, allowing AM
broadcasters to operate in, and experiment with, all-digital
transmissions, while retaining the ability to serve both analog and
digital listeners would foster the conversion of the AM service to
digital ``without disenfranchising the listeners of a station who do
not yet own a digital AM receiver.'' Similarly, NAB and REC assert that
eliminating the radio duplication rule would increase public awareness
of the all-digital mode. That is, while our decision to eliminate the
radio duplication rule for AM stations is not dependent on a Commission
decision to permit AM stations to operate in all-digital mode rather
than hybrid mode, we note that, in the event that the Commission
permits all-digital AM operations, eliminating the duplication rule
would permit a broadcaster with two commonly owned AM stations to
simulcast the same programming on both stations, one in analog and one
in digital. We also note that, should stations be permitted to make the
digital transition, the technical capacity exists for them to
transition from analog to hybrid to all-digital, rather than
transitioning directly from analog to all-digital or simulcasting in
hybrid and all-digital. Digital radio holds significant promise for AM
stations, enabling them to provide sound quality that is equivalent, or
superior, to standard analog FM sound quality. Digital AM radio also
provides a clear, interference-free signal in contrast to AM analog
radio, which is more susceptible to interference. Furthermore,
experimentation in all-digital signals has shown potential promise in
signal coverage robustness. In addition, technological innovations in
all-digital radio allow for ``advanced consumer-friendly features, such
as real-time data and information displays, that are not available via
analog AM radio.'' Thus, allowing simulcasting could attract new
listeners with the higher audio quality made possible by digital
operations without eliminating the ability of analog listeners to
continue to access the station's programming should all-digital signals
ultimately be
[[Page 67306]]
permitted. Furthermore, as NAB asserts, permitting such simulcasting
would serve the public interest by enabling ``broadcasters to build and
maintain a robust audience across the market while evaluating how best
to not only survive, but thrive, in the future.''
13. By eliminating the rule as applied to AM service, we would
therefore eliminate a potential obstacle to a new technology that may
serve to revitalize the AM industry. Proponents of all-digital AM
broadcasting have asserted that `` `the benefits of authorizing all-
digital AM will be widespread for broadcasters and listeners alike' ''
and `` `a voluntary transition to all-digital AM service could help to
reverse [waning AM audience share and advertising revenues] by enabling
broadcasters to provide a pristine signal.' '' Although IBOC hybrid
operations offer some ability for AM stations to provide digital
service, the IBOC technology has not been widely used by AM stations.
As stations are now increasingly exploring the potential for switching
from all-analog to all-digital operations, it is logical for the
Commission to remove legacy rules that may serve as impediments to a
possible all-digital transition. Accordingly, eliminating the radio
duplication rule as to the AM service has the potential to drive
adoption of this new technology, if eventually authorized by the
Commission, by enabling co-owned stations to offer digital programming
to the community while maintaining the programming in analog.
14. FM Service. We conclude that the record demonstrates that
eliminating the radio duplication rule as applied to the FM service
would serve the public interest. Although the FM service does not face
precisely the same persistent technical and economic challenges as the
AM service, we find that the record supports eliminating the rule for
FM stations in order to provide greater flexibility to address issues
of local concern in a timely fashion, particularly in times of crisis.
Moreover, we find that the existing waiver process is not an efficient
means of granting regulatory relief in this context.
15. The current COVID-19 national emergency highlights the need to
provide broadcasters increased flexibility to react nimbly to local
needs, as circumstances have changed rapidly in different jurisdictions
across the country since the beginning of the outbreak. Efforts to slow
the spread of COVID-19 ``have resulted in the dramatic disruption of
many aspects of Americans' lives, including social distancing measures
to prevent person-to-person transmission that have required the closure
of businesses across the country for indefinite periods of time.'' In
the past several months, the Commission has taken a number of steps to
accommodate FCC licensees and regulatees in light of these disruptions.
With respect to the radio duplication rule, NAB states that ``allowing
FM broadcasters to duplicate programming on a commonly owned station
could be particularly helpful in times of crisis, including the one our
nation is currently undergoing.'' NAB notes further that ``small
broadcasters with fewer resources are especially vulnerable if one of
their studio employees contracts the virus,'' as ``the rest of their
staff may be forced to quarantine, making it difficult to produce
original programming.'' We agree and find that in such circumstances,
the ability to quickly repurpose programming on commonly owned stations
will allow such stations to use their limited resources efficiently, as
well as to widely share critical news and health information with the
local community. Of course, this same rationale applies to weather and
other emergencies, ``when it is in the public interest to allow
stations to pool resources and simulcast emergency news and information
without having to incur the expense and delay of obtaining a waiver.''
In such emergencies, eliminating the radio duplication rule would
provide FM stations with critical flexibility to duplicate programming
from a sister station. Although stations can always seek a waiver of
the Commission's rules, the waiver process may unnecessarily inhibit
the ability of stations to react quickly and effectively to local
emergencies and changes in circumstances. In addition, although current
economic conditions are expected to be temporary, they have dampened
advertising revenues across the industry and we see no reason to
require broadcasters to bear the costs of seeking waivers where, as
here, industry-wide relief is appropriate and, as discussed below,
substantial program duplication on stations serving the same market is
unlikely to be profitable.
16. Furthermore, we find that eliminating the radio duplication
rule for the FM service has additional benefits, including helping
stations inform listeners of a format change by permitting the
simulcast of the new format on multiple stations. Accordingly, just as
with AM, we believe there are potential benefits to permitting FM
stations to duplicate programming as circumstances warrant, and we
therefore eliminate the rule as to both radio services.
17. Despite our action today, we continue to believe that
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. Accordingly, bare assertions as to the continued
usefulness of the radio duplication rule for the FM service--for
instance, that the rule ensures ``some basic level of diversity and . .
. prevent[s] spectrum warehousing--are not persuasive. Kern, a self-
described ``prospective non-commercial community broadcaster,'' states
that there is a need for spectrum for new, diverse, and hyperlocal
programming in the FM service and claims that programming duplication
``stifle[s] local programming, diversity of programming, and new
broadcast entrants.'' However, to the extent that Kern believes
regulation of radio station duplication will affect the availability of
LPFM channels, we note that eliminating the radio duplication rule in
order to provide commercial broadcast radio licensees with increased
flexibility would have no impact on Kern's aspiration to become a
noncommercial licensee. Nor does the record provide any evidence that
the current limit restricting the duplication of programming to 25% of
the station's average broadcast week has provided public interest
benefits. Rather, we agree with NAB's assertion that ``airing diverse
content on commonly owned stations is the best way to reach the widest
audience possible and maximize revenues.'' Therefore, although in
today's Order we provide additional flexibility to broadcast radio
stations, we believe that licensees will prefer to maximize the
potential for their stations to reach the greatest number of listeners
with the greatest amount of programming. That is, we do not believe
that duplication will be a common practice by station owners as a
substantially increased amount of it is unlikely to be well-received by
the marketplace. Rather, we anticipate that stations will likely use
the ability to duplicate programming either in an effort to preserve
broadcasting in both the AM and FM services, address issues of local
concern in a timely fashion, respond to a crisis, or aid in a potential
digital transition in the AM service. As a result, we believe that the
costs of continued regulation outweigh the benefits of regulation; any
potential negative impacts on public interest objectives that may
result from our action will be minimal and will be
[[Page 67307]]
outweighed by the public interest benefits identified above.
18. We note that some commenters' observations about some non-
commercial educational licensees substantially duplicate programming on
commonly owned NCE stations across separate markets across the country
are inapposite to our consideration of the radio duplication rule,
which addresses commonly owned commercial stations in the same market,
because such programming duplication involves separate markets. We also
find CFI's claim that elimination of the rule will harm minority
broadcasters to be speculative and unsupported by the record. CFI
supposes that, absent the non-duplication rule, a station that
otherwise would have been ``LMA'd to a minority broadcaster could
simply just rebroadcast programming to another station.'' CFI provides
no evidentiary support, analysis, or explanation as to why this outcome
is likely. To the extent its position is that a change in the radio
duplication rule will lead to more consolidation, we do not believe
that this rule change will give rise to new acquisitions of stations
solely for the purpose of replicating the programming of an incumbent
station already serving the same local area, as such a strategy appears
unlikely to be profitable. Thus, we dismiss any assertion that our rule
change will result in an increase in consolidation of radio station
ownership. Furthermore, as noted above, we believe that existing
station owners may use programming duplication in an effort to preserve
programming in both services, to respond to a crisis, or to aid in a
potential digital transition in the AM service, benefits that would
accrue to minority as well as non-minority broadcasters.
19. Final Regulatory Flexibility Act Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
this Order. The FRFA is set forth in Appendix B.
20. Paperwork Reduction Analysis. This document does not contain
new or revised information collection requirements subject to the
Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. 3501
through 3520). In addition, therefore, it does not contain any new or
modified ``information burden for small business concerns with fewer
than 25 employees'' pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).
21. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of the Order to Congress and the Government
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
22. Additional Information. For additional information on this
proceeding, contact Jamile Kadre, [email protected], of the Industry
Analysis Division, Media Bureau, (202) 418-2245.
Final Regulatory Flexibility Analysis
A. Need for, and Objectives of, the Report and Order
1. The current radio duplication rule prohibits any commercial AM
or FM radio station from devoting ``more than 25 percent of the total
hours in its average broadcast week to programs that duplicate those of
any other station in the same service (AM or FM) which is commonly
owned or with which it has a time brokerage agreement if the principal
community contours . . . of the stations overlap and the overlap
constitutes more than 50 percent of the total principal community
contour service area of either station.'' In this Report and Order
(Order), we eliminate section 73.3556 of the Commission's rules (the
radio duplication rule) to reflect technological and marketplace
changes over the past three decades, including the digital transition.
As noted in the underlying Notice of Proposed Rulemaking (NPRM), there
have been significant changes in the broadcast radio industry since the
current version of this rule was adopted in 1992. Eliminating the radio
duplication rule for both AM and FM licensees will afford broadcast
radio licensees greater flexibility to address issues of local concern
in a timely fashion, facilitate digital broadcasting by AM stations,
and ultimately allow stations to improve service to their communities.
2. For AM licensees, we find that the unique technical and economic
challenges that AM broadcasters currently confront, coupled with the
desire to facilitate an AM digital broadcasting transition, warrant
eliminating the rule for AM licensees in order to provide them with
greater flexibility. The AM broadcasting service faces persistent
interference issues that have hampered the service and frustrated both
consumers and licensees. In particular, the service has faced an
increase in the level of environmental and man-made noise over time,
which has increased the amount of interference in the band. In
addition, AM stations continue to be more difficult to operate and more
expensive to maintain than FM stations, requiring larger and more
complex physical plants, which are increasingly under pressure in urban
areas. Thus, we find that permitting a broadcaster who owns two AM
stations in the same local area to duplicate programming without regard
to the degree of contour overlap between the two stations will serve
the public interest by affording AM broadcast licensees greater
flexibility to respond to marketplace conditions and ultimately will
allow stations to improve service to their communities.
3. We also find that the record demonstrates that eliminating the
radio duplication rule as applied to the FM service would serve the
public interest. Although the FM service does not face precisely the
same persistent technical and economic challenges as the AM service, we
find that the record supports eliminating the rule for FM stations in
order to provide greater flexibility to address issues of local concern
in a timely fashion. Moreover, we find that the existing waiver process
is not an efficient means of granting regulatory relief in this
context. In emergencies, the ability to quickly repurpose programming
on commonly owned stations will allow stations to use their limited
resources efficiently, as well as to widely share critical news and
health information with the local community. Although stations can
always seek a waiver of the Commission's rules, the waiver process may
unnecessarily inhibit the ability of stations to react quickly and
effectively to local emergencies and changes in circumstances.
Furthermore, we find that eliminating the radio duplication rule for
the FM service has additional benefits, including helping stations
inform listeners of a format change by permitting the simulcast of the
new format on multiple stations. Accordingly, just as with AM, we
believe there are potential benefits to permitting FM stations to
duplicate programming as circumstances warrant, and we therefore
eliminate the rule as to both radio services.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
4. There were no comments to the IRFA filed.
[[Page 67308]]
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
5. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Apply
6. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) Is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
7. The rule changes adopted herein will directly affect certain
small radio broadcast stations, specifically commercial AM and FM radio
stations. Below, we provide a description of these small entities, as
well as an estimate of the number of such small entities, where
feasible.
8. Radio Broadcasting. This U.S. Economic Census category
``comprises establishments primarily engaged in broadcasting aural
programs by radio to the public.'' Programming may originate in the
establishment's own studio, from an affiliated network, or from
external sources. The SBA has created the following small business size
standard for such businesses: Those having $38.5 million or less in
annual receipts. Economic Census data for 2012 show that 2,849 firms in
this category operated in that year. Of that number, 2,806 operated
with annual receipts of less than $25 million per year, 17 with annual
receipts between $25 million and $49,999,999 million and 26 with annual
receipts of $50 million or more. Based on this data, we estimate that
the majority of commercial radio broadcast stations were small under
the applicable SBA size standard.
9. The Commission has estimated the number of licensed commercial
FM radio stations to be 6,726, the number of commercial FM translator
stations to be 8,188 and the number of commercial AM radio stations to
be 4,580, for a total of 19,494 commercial radio stations. Of this
total, nine commercial radio stations had revenues of $38.5 million or
greater in 2018, according to Commission staff review of the BIA Kelsey
Inc. Media Access Pro Database (BIA) on June 15, 2020. All other
commercial radio stations qualify as small entities under the SBA
definition. Of this total, nine commercial radio stations had revenues
of $38.5 million or greater in 2018, according to Commission staff
review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June
15, 2020. All other stations qualify as small entities under the SBA
definition.
10. In assessing whether a business concern qualifies as small
under the above definition, business (control) affiliations must be
included. Our estimate, therefore, likely overstates the number of
small entities that might be affected by our action because the revenue
figure on which it is based does not include or aggregate revenues from
affiliated companies. In addition, an element of the definition of
``small business'' is that the entity not be dominant in its field of
operation. We are unable at this time to define or quantify the
criteria that would establish whether a specific radio station is
dominant in its field of operation. Accordingly, the estimate of small
businesses to which the proposed rules may apply does not exclude any
radio station from the definition of small business on this basis and
is therefore possibly over-inclusive.
E. Description of Projected Reporting, Record Keeping and Other
Compliance Requirements
11. The Order eliminates the radio duplication rule as applied to
AM stations and FM stations. Accordingly, the Order does not impose any
new reporting, recordkeeping, or compliance requirements for small
entities. The Order thus will not impose additional obligations or
expenditure of resources on small businesses.
F. Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
12. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
13. In this proceeding, the Commission has three chief alternatives
available for the radio duplication rule--eliminating the rule in its
entirety, retaining the rule in its entirety, or modifying the rule in
some other form. The Commission finds that the public interest and
marketplace realities support eliminating the rule in its entirety,
i.e., eliminating the restriction on radio duplication for both AM and
FM stations. Further, should the Commission permit AM stations to
operate in all-digital format, elimination of this rule will facilitate
the transition to all-digital broadcasting by allowing an AM station to
simulcast its programming on two stations in analog and digital format.
Given that most commercial broadcast stations qualify as small
entities, eliminating the rule will help small entities by providing
greater flexibility for those stations that require it in order to
continue providing programming. Specifically, eliminating the radio
duplication rule for both AM and FM stations would allow broadcasters
to repurpose programming on commonly owned stations.
G. Report to Congress
14. The Commission will send a copy of this Second R&O, including
this FRFA, in a report to Congress and the Government Accountability
Office pursuant to the Small Business Regulatory Enforcement Fairness
Act of 1996. In addition, the Commission will send a copy of the Second
R&O, including the FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of the Second R&O and FRFA (or
summaries thereof) will also be published in the Federal Register.
H. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
15. None.
Ordering Clauses
16. Accordingly, it is ordered that, pursuant to the authority
found in sections 1, 4(i), 4(j), and 303(r) of the Communications Act
of 1934, as
[[Page 67309]]
amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), this Order is
adopted.
17. It is further ordered that, pursuant to the authority found in
sections 1, 4(i), 4(j), and 303(r) of the Communications Act of 1934,
as amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), the Commission's
rules are amended as set forth in Appendix A, effective as of the date
of publication of a summary in the Federal Register.
18. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
19. It is further ordered that, pursuant to Section 801(a)(1)(A) of
the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission
shall send a copy of the Order to Congress and to the Government
Accountability Office.
20. It is further ordered that, should no petitions for
reconsideration or petitions for judicial review be timely filed, MB
Docket No. 19-310 shall be terminated and its docket closed.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Section 73.3556 is removed.
[FR Doc. 2020-21319 Filed 10-21-20; 8:45 am]
BILLING CODE 6712-01-P
