19-310: In support of diversity and listener choice, REC & Music Industry team up to fight FM duplication rule repeal
REC Networks, along with the musicFIRST Coalition and the Future of Music Coalition have filed a Petition for Reconsideration on the Report and Order in the Broadcast Duplication proceeding, MB Docket 19-310, which was a part of Chairman Pai’s Media Modernization Initiative.
Current FCC rules (§73.3556) prohibit commonly-owned commercial broadcast stations from duplicating the same programming on more than one station in the same service (AM or FM) more than 25% of the time when the stations involved overlap their contours (70 dBu for FM, 5 mV/m for AM) by more than 50%.
In the original proceeding, the FCC proposed to repeal the rule entirely. While the National Association of Broadcasters spoke out in favor of the repeal, many organizations and entities, including REC, opposed the repeal on FM, as such a move would further erode broadcast diversity and listener choice. REC supported the ability for AM stations to duplicate programming. This position was driven mainly on the fact that AM stations are currently struggling due their many technical challenges as well as a method to help AM broadcast stations begin a transition to MA3 all-digital HD Radio. Unlike AM, FM radio does not have the same technical challenges.
Three weeks prior to the Commission’s vote on the matter, the FCC released a circulation draft of the Report and Order. That Order specifically sided with REC that such a rule on FM ensures some basic level of diversity and prevents spectrum warehousing. The Commission recognized that there was no evidence presented that the current 25% rule harms FM broadcasters.
One week prior to the vote, on the day prior to the beginning of the Sunshine period (when presentations can’t be made to FCC decision making staff), the NAB made presentations to Commissioners in the majority party citing, primarily, COVID-19 as a reason why FM stations should be permitted to duplicate programming. As a result, the Commission voted 3-2 to repeal the duplication rule for all commercial radio (AM and FM).
This change drew strong comments from minority party Commissioners Rosenworcel and Starks. Rosenworcel said that the decision rushes ahead without doing the due diligence needed to consider the impact on localism, competition and diversity. Starks stated that the majority did not explain the dramatic change of heart, nor explained how the benefits to FM broadcasters outweigh the public interest in protecting truly local broadcast programming and local audiences from the harms of unfettered duplicate programming.
In the Reconsideration; REC, MusicFIRST and FMC cite potential violations of the Administrative Procedures Act through the majority’s last minute change in the proposed rule and further notes that COVID-19 related relief to FM stations is currently available through the existing waiver processes. REC views the majority’s change of heart as a way to play the “COVID card” in order to advance the NAB agenda. REC, MusicFIRST and FMC are seeking reconsideration of the repeal on FM only. REC still holds a position in support of the repeal on AM in order to provide relief to struggling AM stations and to facilitate a more listener friendly transition to MA3 all-digital HD Radio.
Based on the outcome of the Electoral College vote, this Petition may be considered by a Democrat-controlled FCC, with the possibility that one of its most vocal dissenters (Comm. Rosenworcel) will be Chair at the time of the decision.
The musicFIRST coalition includes a broad spectrum of organizations representing musicians, recording artists, managers, music businesses and performing rights organizations.
Future of Music Coalition is a nonprofit organization supporting a musical ecosystem where artists flourish and are compensated fairly and transparently for their work.
REC’s cooperative participation in this proceeding is a showing of common ground on specific issues and does not modify any of our previous positions on performing rights issues.