Reinstatement of Radio Non-Duplication Rule for Commercial FM Stations, 55078-55085 [2024-14496]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Rules and Regulations]
[Pages 55078-55085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14496]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket Nos. 19-310, 17-105; FCC 24-66; FR ID 228050]


Reinstatement of Radio Non-Duplication Rule for Commercial FM 
Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopted an Order on Reconsideration that responds to a 
petition requesting reinstatement of the prohibition on the duplication 
of commercial FM programming beyond a 25% threshold.

DATES: Effective August 2, 2024.

FOR FURTHER INFORMATION CONTACT: John Bat, Media Bureau, Industry 
Analysis Division, [email protected], (202) 418-7921.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Order), in MB Docket Nos. 19-310, 17-105, FCC 24-
66, adopted on June 5, 2024, and released on June 10, 2024. The full 
text of this document is available electronically via the search 
function on the FCC's Electronic Document Management System (EDOCS) web 
page at https://docs.fcc.gov/public/attachments/FCC-24-66A1.pdf. To 
request materials in accessible formats for people with

[[Page 55079]]

disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] (mail to: [email protected]) or call the 
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. By this Order, we grant the Petition for Reconsideration of REC 
Networks, the musicFIRST Coalition, and the Future of Music Coalition 
(Petitioners) requesting that the Commission reinstate Sec.  73.3556 of 
the Commission's rules (the radio duplication rule) for commercial FM 
stations. We find that reinstating the prohibition on the duplication 
of FM programming beyond a 25% threshold serves the public interest by 
furthering the goals of competition, programming diversity, localism, 
and spectrum efficiency. We also find that the existing waiver process 
should address sufficiently the concerns of specific FM stations in 
unique circumstances.

Background

    2. The Commission's radio duplication rule has evolved over time 
consistent with changes in the broadcast radio market. The Commission 
first limited the duplication of programming by commonly owned radio 
stations serving the same local area in 1964 when it prohibited 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.''
    3. In 1976, the Commission tightened the radio duplication 
restriction. It limited 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 remain available. 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 
support the elimination of 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.
    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. The Commission saw no 
public benefit to allowing commonly owned same-service stations in the 
same local market to duplicate more than 25% of their programming, 
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 concluded, however, that limited programming duplication--
specifically, below the 25% threshold--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. 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 the 
Commission noted in the NPRM, the broadcast industry has changed 
significantly since the Commission adopted the latest version of the 
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, the Commission asked commenters to address several issues, 
including the impact of market forces (i.e., new sources of audio 
programming, increased number of stations, instances of consolidation 
in any aspect of the media marketplace) and the impact of the radio 
duplication rule on the Commission's public interest goals of 
competition, programming diversity, localism, and spectrum efficiency. 
The NPRM also sought comment on whether the Commission's prior 
rationale (in 1986) 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. The NPRM sought input on the benefits of allowing 
some level of programming duplication, as well as potential 
modifications to the rule. In addition, the NPRM 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, the NPRM asked commenters to discuss potential costs 
and benefits of modifying or eliminating the rule. Four parties filed 
comments in response to the NPRM, and two parties filed reply comments.
    6. Prior to the Commission's elimination of the radio duplication 
rule for both AM and FM stations in August 2020, Commission staff 
publicly circulated a draft order that, if adopted, would have retained 
the rule for the FM band. The draft order concluded that the radio 
duplication rule for the FM service remained useful in furthering the 
goals of competition, programming diversity, localism, and spectrum 
efficiency. Among other things, the draft order concluded that the FM 
service does not face the same persistent challenges as the AM service, 
that the rule as applied to FM continued to ``act as a useful 
guiderail'' to encourage programming diversity and spectrum efficiency, 
and that the existing waiver

[[Page 55080]]

process was sufficient to provide flexibility where needed.
    7. Following public release of the draft order, NAB submitted a 
letter advocating for elimination of the rule for FM service as well as 
AM. In the letter, NAB asserted that elimination of the rule entirely 
would provide needed flexibility and benefits to FM licensees and ease 
the burdens NAB alleged were caused by the rule. For instance, NAB 
contended that FM station staffs forced to quarantine due to the 
pandemic could find it difficult to produce original programming. NAB 
further suggested that were the Commission to eliminate the rule, 
stations could pool resources to simulcast emergency information 
without incurring the delay of a waiver or could inform listeners of 
format changes by simulcasting their new formats on multiple stations. 
NAB went on to assert that the rule as applied to FM stations produced 
no public interest benefits, that FM stations face considerable 
competition, and that market forces would naturally give commonly owned 
stations an incentive to air distinct programming, all of which 
warranted eliminating the rule to allow FM stations to repurpose costly 
programming, quickly and effectively, where appropriate.
    8. In contrast to the draft order, the final Order, as adopted by 
the Commission, eliminated the radio duplication rule for both AM and 
FM services. Explaining its reasoning for the elimination of the rule 
for AM stations in the final Order, the Commission stated that AM 
stations could better serve the needs of the public if they were 
afforded greater regulatory flexibility for innovative experimentation 
with digital radio. The Commission pointed to unique pressures facing 
the AM service, such as escalated environmental and man-made noise, 
which has increased levels of harmful interference. The Commission also 
stressed that unlike with FM service, the AM service faces higher 
operational costs due to the larger and more complex physical plants 
that are necessary to maintain the band. In removing the rule for FM 
stations, the Commission relied primarily on its desire to afford 
flexibility to respond to the exigencies of the ongoing COVID-19 
national emergency. Stating that the elimination of the rule was 
necessary for stations to inform listeners of emergency information and 
formatting changes, the Commission also asserted that programming 
duplication would in most cases not become a ``common practice,'' but 
rather a short-term response to unique circumstances.
    9. On November 20, 2020, REC Networks, the musicFIRST Coalition, 
and the Future of Music Coalition filed a petition for reconsideration 
asking that the Commission reinstate the radio duplication rule for FM 
stations. NAB filed an Opposition to the Petition on January 5, 2021. 
Common Frequency filed a Reply to the Opposition on January 14, 2021, 
and REC Networks, the musicFIRST Coalition, and the Future of Music 
Coalition did the same on January 15, 2021. Petitioners do not request 
that the Commission reinstate the radio duplication prohibition for AM 
stations.

Discussion

    10. As discussed further below, we reinstate Sec.  73.3556 of our 
rules as to FM stations in order to further the goals of competition, 
programming diversity, localism, and spectrum efficiency. We find that 
Petitioners provide valid reasons to reconsider eliminating the radio 
duplication rule as applied to FM stations, and we conclude that the 
record supports reinstating the rule for FM service. Specifically, we 
find that the record does not provide sufficient evidence that the 
rule, as applied to FM service, has caused or will cause harm to FM 
licensees, that market forces alone would be sufficient to preserve the 
rule's benefits, or that the 25% duplication allowance set forth in the 
former rule and the potential to seek a waiver to exceed that allowance 
in the event of special circumstances is insufficient to provide FM 
licensees with flexibility where needed. Furthermore, contrary to NAB's 
assertion that unique economic pressures facing radio stations 
justified rescinding the rule for FM service, we find that the record 
lacks sufficient evidence to demonstrate that the rule actually 
contributes to such economic pressures or that eliminating the rule 
would reduce those pressures in any meaningful way. As a result, we 
believe that elimination of the rule for FM service in the final Order 
was, at best, premature given the absence of such evidence, and 
particularly as balanced against the countervailing public interest 
objectives the rule serves. Accordingly, we find that reinstating the 
radio duplication rule for FM service strikes the right balance between 
affording FM stations the ability to repurpose some amount of 
programming on commonly owned stations while continuing to further the 
public interest goals of competition, programming diversity, localism, 
and spectrum efficiency.
    11. As an initial matter, we find that granting the Petition is 
within the Commission's discretion. Contrary to NAB's assertion that 
the Petition should be denied because it does not raise new issues that 
were not already addressed by the Commission in the Order, we reiterate 
that ``Commission precedent establishes that reconsideration is 
generally appropriate where the petitioner shows either a material 
error or omission in the original order.'' In this instance, we are 
persuaded that the Commission's prior decision erred in eliminating the 
radio duplication rule for FM stations. We note that Petitioners have 
questioned whether the process by which the Commission eliminated the 
rule with respect to FM service complied with the Administrative 
Procedure Act. Because we conclude that Petitioners make convincing 
arguments on the merits about the need to reinstate the rule for FM 
service to further the public interest goals of competition, 
programming diversity, localism, and spectrum efficiency, we need not 
reach Petitioners' separate arguments about whether to reinstate the 
rule based on alleged inadequacies in the process by which it was 
eliminated.
    12. We conclude that the record does not demonstrate that 
eliminating the radio duplication rule as applied to the FM service 
serves the public interest, and we are persuaded that the Commission's 
earlier conclusion that it did so was in error. Although the Commission 
stated in the Order that ``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,'' we find that 
contrary conclusions used to justify eliminating the rule for FM 
service in fact rest on ``bare assertions'' derived from an exceedingly 
thin record proffered in support of that decision. Specifically, only a 
single commenter--NAB--advocated for elimination of the rule with 
regard to FM service. In so doing, NAB offered only general assertions 
regarding arguments supporting elimination of the rule for AM that it 
contended could also apply to FM and anecdotal suggestions that there 
could be select circumstances in which duplication would be ``helpful'' 
to FM stations. On reconsideration, we find NAB's claims about the 
harms the rule causes to be lacking in concrete or credible support. By 
contrast, we find comments describing the benefits the rule is intended 
to foster and the harms that would accrue in its absence support 
retaining the rule. Moreover, we find that, in the absence of more 
convincing

[[Page 55081]]

evidence to assure us that elimination is wise at this time, there are 
various countervailing objectives that support reinstatement of the 
rule in the service of competition, programming diversity, localism, 
and spectrum efficiency, objectives that we find compelling for the 
reasons described herein.
    13. Indeed, we find that the radio duplication rule acts as a 
useful guiderail in the FM service--where spectrum is in higher demand 
(than AM service) by consumers, advertisers, and owners--to encourage 
the diversification of programming on commonly owned FM stations, which 
then compete in the marketplace for listeners and advertisers. As 
Petitioners note, allowing duplication of FM programming beyond the 25% 
threshold can harm competition in the radio marketplace because, ``[t]o 
the extent that larger clusters are allowed to slash programming costs 
by eliminating programming on one or more FM stations within a given 
single market, yet continue to sell advertising on such warehoused 
spectrum, it follows that competing independent radio stations in that 
shared market cannot take advantage of similarly drastic economies of 
scale.'' We conclude that a quantifiable cap on duplication for FM 
stations properly balances stations' economic and practical needs to 
offer some duplication with consumers' needs for diverse and local 
programming, and addresses competition concerns as well. Given the 
potential economic incentives to duplicate programming (e.g., cost 
cutting), we share Petitioners' concerns regarding the attendant harms 
to the public interest goals of diversity and localism--due to 
potential reduction of ``local voices on local airwaves'' providing 
``locally-relevant programming''--should we not reinstate the rule.
    14. Regardless of any perceived benefits, we note that duplication 
of programming is an inherently inefficient use of spectrum. As 
recognized before by the Commission, where there is limited quantity of 
spectrum, duplication beyond a 25% allowance can be considered 
inefficient. While the Commission previously took the position that 
market forces give station owners an incentive to avoid duplicating 
programming that renders a prohibition on duplication unnecessary, on 
reconsideration we do not find sufficient evidence in the record to 
demonstrate that market forces would dictate against duplication above 
the rule's threshold in all, or even most, instances. Conversely, we 
find that the record provides at least some evidence of an incentive to 
duplicate programming where market forces apparently failed to prevent 
it. Notably, Kern Community Radio (Kern), a prospective non-commercial 
community broadcaster, stated that, in addition to the rebroadcast of 
programming being imported from outside the market, duplication also is 
occurring in its local market of Bakersfield, California. Given that 
other commenters failed to cite evidence either refuting or countering 
the market information provided by Kern, we are not convinced that the 
duplication in the Bakersfield-area market is somehow unique or 
isolated. While NAB notes that the radio duplication rule was 
eliminated three years ago, thus providing an opportunity to assess 
whether stations increased duplication after elimination of the rule, 
NAB provides no evidence on this point or otherwise refutes or counters 
the information in the record. Thus, we find that it was erroneous for 
the Commission to have ignored such evidence when it agreed with NAB in 
2020 that stations obviously are incentivized by market forces not to 
duplicate, and relied on this reasoning to rescind the rule. While NAB 
contends that duplication could reduce the revenues that a station 
owner could otherwise earn by offering non-duplicative programming, 
duplication also allows a station owner to reduce costs substantially. 
Additionally, the ability to operate a station inexpensively using 
duplicative programming may, in fact, give a group station owner a 
disincentive to invest in new programming, or an incentive to occupy 
the frequency simply to avoid the potential introduction of a 
competitor. We find NAB's theoretical arguments are insufficient to 
support the conclusion that market forces alone would be adequate to 
protect against duplication in the FM band. While experience with the 
AM band may, over time, provide some evidence relevant to such 
theoretical questions, without more or better evidence in the record of 
this proceeding, we find that it was premature to extend elimination of 
the rule to FM in the Order.
    15. We further find that the Commission erred in abolishing the 
duplication rule in the context of the pandemic ongoing at the time. On 
reconsideration, we find that the record fails to demonstrate that the 
25% duplication allowance set forth in the former rule and the 
potential to seek a waiver to exceed that allowance would not 
sufficiently address exigent circumstances. When eliminating the radio 
duplication rule, the Commission stated that the COVID-19 national 
emergency ``highlight[ed] 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.'' We acknowledge that there may be 
particular value in ``allowing FM broadcasters to duplicate programming 
on a commonly owned station . . . in times of crisis, including the one 
our nation is currently undergoing'' because ``small broadcasters with 
fewer resources are especially vulnerable if one of their studio 
employees contracts the virus.'' However, upon review we find that the 
record lacks sufficient evidence or examples of inefficiencies tied to 
the pandemic or other exigent circumstances that would justify 
permanent industrywide relief. In addition, the record lacks evidence 
that the existing 25% duplication allowance has proven to be 
insufficient for FM stations to respond to emergencies. Given what we 
believe to be the minimal burden of addressing by waiver what NAB 
terms, somewhat imprecisely, as ``times of crisis,'' and what we assume 
to be the relative infrequency of such occasions, we do not believe 
that burden outweighs the risks associated with essentially exempting 
FM stations from the nonduplication limitations on such a vague basis. 
However, we would expect to look favorably upon waivers premised on 
adequately documented weather or similarly unforeseen emergencies, 
sought promptly at the time of such emergencies.
    16. As the Petitioners note, the COVID-19 national emergency is ``a 
temporary event.'' During this time, the Commission has taken a number 
of steps to accommodate Commission licensees and regulatees in light of 
disruptions to their businesses. As Petitioners state, ``radio station 
owners whose financial struggles force a choice between duplicating 
programming or allowing one or more of their FM stations to go `dark' 
'' may seek a waiver to exceed the 25% duplication allowance. Overall, 
we find that the clear potential harms arising from the Commission's 
elimination of the rule--harms to competition, diversity, localism, and 
spectrum efficiency--when weighed against speculative potential 
benefits, if any, merit reinstating the rule for FM service. Benefits 
of rescinding the rule cited by NAB, including efficiencies in 
responding to emergencies, are inherently speculative. The record

[[Page 55082]]

contains no evidence demonstrating that such efficiencies could not be 
achieved with the 25% duplication allowance and existing waiver 
options. Further, we reject NAB's suggestion that potential efficiency-
related benefits can only be achieved through revocation of the rule 
entirely when adequate regulatory relief was previously provided for in 
the rule with the 25% duplication allowance.
    17. Although the Commission previously expressed concerns regarding 
costs and delay associated with waiver requests to exceed the 25% 
duplication allowance based on special circumstances, we find on 
reconsideration that in fact there is no information in the record 
demonstrating that the waiver process has proven unreasonably 
burdensome. We acknowledge that any waiver process inherently entails 
some level of cost and delay, but those costs must be balanced against 
the harms, noted above, that could ensue were the rule eliminated 
entirely. On balance, we do not find evidence that the waiver process 
entails costs or delay so unreasonable as to outweigh the legitimate 
safeguards the rule provides. Indeed, NAB has failed to provide 
concrete evidence demonstrating that FM stations have struggled to 
respond to weather and other emergency events because of the need to 
seek a waiver, despite raising such a concern. We find that the rule 
provides stations a sufficient buffer under the 25% duplication 
allowance so that stations may react responsively and nimbly to 
emergencies, format changes, and other special circumstances that might 
warrant a temporary level of duplication. We agree with Petitioners 
that the wholesale elimination of the radio duplication rule for FM 
stations across the industry ``shortchange[d] the careful tailoring and 
analysis available through the waiver process,'' through which stations 
can seek relief. A waiver process exists precisely to account for 
temporary or unique circumstances that warrant a limited departure from 
the overall rule.
    18. Finally, whatever the alleged or perceived economic challenges 
facing the FM service may be, we conclude that the record does not 
establish that elimination of the prohibition on duplication as it 
pertains to FM service is an appropriate, or likely to be an effective, 
means to address those challenges. In its support of the elimination of 
the duplication rule, NAB has repeatedly emphasized how FM stations 
have encountered significant financial stress--in part due to listener 
demands for higher fidelity in an ``expanding universe'' of platforms 
and economic shocks from COVID-19. However, as stated above, the rule 
was created in service of other objectives, which would be jeopardized 
in its absence. Moreover, we cannot conclude that the duplication 
rule's impacts are sufficiently tied to FM stations' economic and 
listenership challenges such that revocation of the rule entirely would 
meaningfully address these larger concerns. We find that the rule 
already provides adequate flexibility for those FM stations that choose 
partial or short-term duplication of programming in response to either 
economic challenges or other temporary emergency or reformatting needs.
    19. We are not persuaded by NAB's ex parte request to pause this 
Order until the Commission first collects and analyzes new data on the 
nature and prevalence of programming duplication, and/or information 
regarding recent changes to stations' operations, since the 
Commission's elimination of the duplication rule. We note that NAB has 
not submitted such data. In any event, regardless of whether and to 
what extent duplication has begun to take place, it does not follow 
that the Commission should delay further the restoration of a useful 
guiderail. As noted above, in those instances where duplication is 
occurring or will occur in the future, and where there is a legitimate 
need for it, the 25% duplication allowance and waiver process will 
remain available to stations.
    20. Although we reject calls to wait further to act, we provide a 
six-month grace period to the extent that some FM stations are 
currently employing duplication that exceeds the limits of the 
reinstated rule. In order to minimize possible service disruptions and 
burdens for these stations, and to provide them with an ample runway 
back to compliance with the reinstated rule, we will provide a six-
month grace period after the rule's effective date to come into 
compliance. The six-month grace period will begin when the reinstated 
rule becomes effective thirty days after publication in the Federal 
Register. Consistent with this grace period, we strongly encourage any 
FM station that currently exceeds the duplication allowance, and that 
intends to seek a waiver, to submit its request for a waiver within the 
first ninety days after the new rule becomes effective. We believe that 
adherence to this timeframe will benefit such stations by permitting 
them to take advantage of the grace period and continue their current 
practices while any waiver request is under review. Nevertheless, we 
will permit FM stations currently employing duplication that exceeds 
the 25% duplication allowance to continue to transmit their programming 
in excess of the 25% duplication allowance unless and until the waiver 
request is denied. In the event that a waiver request is denied, we 
direct the Media Bureau to provide the licensee with additional time to 
come into compliance, not to exceed six months from wavier denial. In 
addition, we emphasize that the grace period and our guidance on 
waivers for those FM stations currently duplicating in excess of the 
25% duplication allowance, as described directly above, does not 
preclude an FM station that later finds itself interested in pursuing a 
waiver from seeking one. The general process for seeking a waiver of 
the reinstated rule will continue to remain available beyond, and apart 
from, the grace period and ninety-day recommendation for requesting a 
waiver described in this paragraph.
    21. In conclusion, we agree with Petitioners that the Commission 
erred by enacting a permanent rule change for the FM service when the 
existing duplication allowance and waiver option, adequately address 
issues that may arise. The reinstated rule will function as a useful 
guiderail promoting the public interest and will provide sufficient 
flexibility to serve the particularized needs of FM stations. For the 
reasons stated above, we find that any costs associated with 
reinstating the rule for FM service are outweighed by the benefits 
associated with the rule in furthering the public interest objectives 
of competition, programming diversity, localism, and spectrum 
efficiency. Accordingly, we grant the Petition and reinstate the radio 
duplication rule as to FM stations.

Procedural Matters

    22. Supplemental Final Regulatory Flexibility Act Analysis. In 
compliance with the Regulatory Flexibility Act (RFA), this Supplemental 
Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements 
the Final Regulatory Flexibility Analysis (FRFA) included in the Order, 
to the extent that changes adopted on reconsideration require changes 
to the information included and conclusions reached in the FRFA. As 
required by the Regulatory Flexibility Act of 1980, as amended (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in 
the NPRM that initiated this proceeding. The Commission sought written 
public comment on the proposals in the NPRM, including comment on the 
IRFA. The Commission received no comments in response to the IRFA. This 
present Supplemental FRFA conforms to the RFA.

[[Page 55083]]

    23. 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).
    24. 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 on Reconsideration to Congress 
and the Government Accountability Office pursuant to 5 U.S.C. 
801(a)(1)(A).

Supplemental Final Regulatory Flexibility Act Analysis

    25. Supplemental Final Regulatory Flexibility Act Analysis. As 
required by the Regulatory Flexibility Act of 1980, as amended (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in 
the NPRM that initiated this proceeding. The Commission sought written 
public comment on the proposals in the NPRM, including comment on the 
IRFA. The Commission received no comments in response to the IRFA. This 
present Supplemental FRFA conforms to the RFA.

A. Need For, and Objectives of, the Order on Reconsideration

    26. The radio duplication rule prohibited any commercial AM or FM 
radio station from devoting ``more than 25% 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% of the total principal community contour service area of 
either station.'' In this Order on Reconsideration, we restore the 
radio duplication rule as applied to FM stations in order to better 
serve the public interest.
    27. We find that the record does not demonstrate that eliminating 
the radio duplication rule as applied to the FM service serves the 
public interest, as the FM service does not face the same persistent 
challenges as the AM service that eliminating the rule for AM stations 
was intended to mitigate. We find that there are likely benefits to 
restoring the radio duplication rule for FM stations. The radio 
duplication rule will act as a useful guiderail in the FM service--
where spectrum is especially scarce--to encourage the diversification 
of programming on commonly owned FM stations. Accordingly, we restore 
the radio duplication rule for FM stations, while recognizing the 25% 
duplication allowance and the potential to seek a waiver to exceed that 
allowance in the event of special circumstances will provide FM 
licensees with flexibility where needed.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    28. There were no comments to the IRFA or FRFA filed.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    29. 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

    30. 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 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. The rule 
changes adopted herein will directly affect certain small radio 
broadcast stations, specifically commercial 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.
    31. Radio Stations. This industry is comprised of ``establishments 
primarily engaged in broadcasting aural programs by radio to the 
public.'' Programming may originate in their own studio, from an 
affiliated network, or from external sources. The SBA small business 
size standard for this industry classifies firms having $41.5 million 
or less in annual receipts as small. U.S. Census Bureau data for 2017 
show that 2,963 firms operated in this industry during that year. Of 
this number, 1,879 firms operated with revenue of less than $25 million 
per year. Based on this data and the SBA's small business size 
standard, we estimate a majority of such entities are small entities.
    32. The Commission estimates that as of March 31, 2024, there were 
4,427 licensed commercial AM radio stations and 6,663 licensed 
commercial FM radio stations, for a combined total of 11,090 commercial 
radio stations. Of this total, 11,088 stations (or 99.98%) had revenues 
of $41.5 million or less in 2022, according to Commission staff review 
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on April 4, 
2024, and therefore these licensees qualify as small entities under the 
SBA definition. In addition, the Commission estimates that as of March 
31, 2024, there were 4,320 licensed noncommercial (NCE) FM radio 
stations, 1,960 low power FM (LPFM) stations, and 8,913 FM translators 
and boosters. The Commission however does not compile, and otherwise 
does not have access to financial information for these radio stations 
that would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of radio station licensees, we presume that all 
of these entities qualify as small entities under the above SBA small 
business size standard.
    33. We note, however, that 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, 
another element of the definition of ``small business'' requires that 
an 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 or television broadcast station is dominant in 
its field of operation. Accordingly, the estimate of small businesses 
to

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which the rules may apply does not exclude any radio or television 
station from the definition of a small business on this basis and is 
therefore possibly over-inclusive. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. Because it is difficult to assess 
these criteria in the context of media entities, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and similarly may be over-inclusive.

E. Description of Projected Reporting, Record Keeping and Other 
Compliance Requirements

    34. The Order on Reconsideration restores the radio duplication 
rule as applied to FM stations. Accordingly, the Order on 
Reconsideration reinstates prior reporting, recordkeeping, and 
compliance requirements for small entities. Therefore, the Order on 
Reconsideration 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

    35. 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.
    36. In this proceeding, we reinstate the radio duplication rule for 
FM stations. This action reinstates prior reporting, recordkeeping, and 
compliance requirements for all commercial FM radio stations, including 
small entities. We determined in this Order on Reconsideration that 
reinstating the radio duplication rule for FM stations would better 
serve the public interest and anticipate that reinstatement of the rule 
will positively impact broadcasters, including small entities, and 
avoid the potential harms described by Petitioners. We believe that the 
reinstated rule for FM broadcasters affords small businesses sufficient 
flexibility under the 25% duplication allowance. Because we do not 
anticipate that a large number of broadcasters will exceed the 
allowance, we find that the allowance by itself provides adequate 
accommodation for small businesses. For those few cases in which FM 
stations would surpass the duplication allowance, we permit stations to 
submit waiver requests which specify the need for and special 
circumstances justifying duplication beyond the allowance. For those FM 
stations that duplicate programming in excess of the 25% duplication 
allowance, we will provide a six-month grace period to come into 
compliance with the reinstated rule. The period will begin when the 
reinstated rule becomes effective thirty days after publication in the 
Federal Register. In addition, we direct the Media Bureau to provide 
the licensee with additional time to come into compliance, not to 
exceed six months if a duplication waiver request is denied. We 
conclude that extending such flexibility to FM stations, especially for 
small entities, will mitigate some of the compliance burdens associated 
with the rule change. Taken together, these provisions allow for all 
stations, no matter their size and resources, to comply with the rule 
without being unduly burdened.

G. Report to Congress

    37. The Commission will send a copy of this Order on 
Reconsideration, including this Supplemental 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 Order on Reconsideration, including 
the Supplemental FRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the Order on Reconsideration and 
Supplemental FRFA (or summaries thereof) will also be published in the 
Federal Register.

H. Federal Rules That May Duplicate, Overlap, or Conflict With the Rule

    38. None.

Ordering Clauses

    39. 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 amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), this 
Order on Reconsideration is adopted and will become effective thirty 
days after publication in the Federal Register.
    40. It is further ordered that the Petition for Reconsideration 
filed by REC Networks, the musicFIRST Coalition, and the Future of 
Music Coalition is granted.
    41. 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 and such rule amendment 
will become effective thirty days after publication in the Federal 
Register.
    42. It is further ordered that the Commission's Office of the 
Secretary, shall send a copy of this Order on Reconsideration, 
including the Supplemental Final Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.
    43. 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's 
Office of the Managing Director, Performance Program Management shall 
send a copy of the Order on Reconsideration to Congress and to the 
Government Accountability Office.
    44. 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, Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rule

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICE

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. Add Sec.  73.3556 to read as follows:


Sec.  73.3556  Sponsorship identification; list retention; related 
requirements.

    (a) No commercial FM radio station shall operate so as to devote 
more than 25 percent of the total hours in its average broadcast week 
to programs that duplicate those of any station in the same service 
which is commonly owned or with which it has a time brokerage agreement 
if the principal community contours (predicted 3.16 mV/m) of the

[[Page 55085]]

stations overlap and the overlap constitutes more than 50 percent of 
the total principal community contour service area of either station.
    (b) For purposes of this section, duplication means the 
broadcasting of identical programs within any 24-hour period.

[FR Doc. 2024-14496 Filed 7-2-24; 8:45 am]
BILLING CODE 6712-01-P