
In a 3-2 vote, the FCC has reinstated a rule that prohibits commonly owned or operated commercial FM stations with substantially overlapping signals from duplicating more than 25% of their programming on a weekly basis. The prior rule, which had been in effect since 1992, prohibited duplication on two commonly owned or operated same service (AM or FM) stations. It was eliminated by the FCC under Chairman Ajit Pai in 2020 as part of the Modernization of Media Regulation Initiative. Several parties requested the FCC to reconsider the elimination of the non-duplication rule for same-service FM stations.
The FCC concluded that its prior decision to eliminate the non-duplication rule for FM stations was erroneous and that the record did not provide sufficient evidence that the rule has caused or will cause harm to FM licensees. The FCC emphasized that the National Association of Broadcasters (NAB) was the only commenter who supported elimination of the rule. The FCC concluded that limiting duplication to 25% of weekly programming properly balances stations’ economic and practical needs to offer some duplication with consumers’ needs for diverse and local programming.
While the FCC’s Order did not explicitly dispute the Pai Commission’s conclusions that FM radio faces economic challenges, it concluded that the record did not demonstrate that eliminating the non-duplication rule was an appropriate or effective way to address such challenges. The FCC will continue to consider waiver requests from licensees who seek to duplicate more programming than is permitted under the rule. Under the prior rule, such waivers were typically granted only for short, temporary periods.
The reinstatement of the rule will be effective 30 days after the FCC’s Order is published in the Federal Register. Commonly owned or operated FM stations that are currently duplicating more than 25% of their programming will have a six-month grace period to come into compliance and will be able to request a waiver. The FCC’s Order encourages stations that intend to seek a waiver to file their requests within 90 days after the rule becomes effective, and states that such stations may continue to exceed the 25% limit while waiver requests are pending.
In a dissenting statement, Commissioner Brendan Carr stated that the FCC should be modernizing its regulations so that broadcasters can compete on a level playing field with their unregulated competitors, but that reinstatement of the programming non-duplication rule does the opposite.
If you have questions about the FCC’s non-duplication rule, contact an attorney in our Media practice group.
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