On Thursday, August 6, the Federal Communications Commission (“FCC”) voted to repeal Section 73.3556 of its Rules and Regulations – a rule that formerly prohibited more than 25% duplication of programming by commonly owned radio stations in the same service (AM or FM) that have 50% or more overlap of their primary service contours.
We wrote about the proposals on January 3, 2020. The FCC’s initial conclusion was to repeal the rule for only AM stations, since many such stations are financially strained, and allowing duplication might facilitate transitioning AM stations to all-digital service while preserving the same programming on the analog signal of a separate station. However, during the final week before voting, the Commissioners changed their minds and decided to nuke the rule altogether – a decision that led Commissioner Starks to raise his eyebrows because the change had not been put out for public comment. Because the rule change is a removal of a restriction rather than an imposition of a new restriction, the repeal will become available immediately when the Report and Order is published in the Federal Register.
As we noted in January, the rule restricting program duplication has been tweaked several times since it was first adopted in 1964. Sometimes the FCC tightened the rule; other times, it loosened the rule. It is pretty easy to make a case either way: Some will say that duplication wastes spectrum and reduces program diversity, so it should be restricted. Others will take the position that that duplication can allow desirable programming to reach more listeners, and marketplace forces are adequate to ensure that broadcasters will provide optimum service to the public, so the government should respect the First Amendment and keep its fingers out of the programming pie.
In the end, it appears that adjustments to the rule over the years have depended at least in part on the viewpoints of Commissioners in office at the time. Today’s Commissioners are looking for ways to lift some types of regulations (some people argue that they should lift many more). This rule was relatively easy to eliminate, as there was no strong opposition to repeal, and no one seriously threatened to haul the FCC back to the dreaded Third Circuit Court of Appeals that has repeatedly pounded the FCC with a sledgehammer over the agency’s attempts to relax broadcast multiple ownership restrictions.
So now, as soon as the repeal becomes effective, station owners will be allowed to present the same programming not only on one AM and one FM station in a market, which has always been permitted, but also on two AM or two FM stations – or three or four or all of their stations in a market in the unlikely event that they think that would make good business sense.