Amendment of the Commission's Rules Regarding Duplication of Programming on Commonly Owned Radio Stations; Modernization of Media Initiative, 67303-67309 [2020-21319]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[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]



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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

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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.

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    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

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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