6712-01
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.
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 [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE
FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: John Bat, Media Bureau, Industry Analysis Division,
John.Bat@fcc.gov, (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 disabilities (Braille, large print, electronic files, audio format), send an email to
fcc504@fcc.gov (mail to: fcc504@fcc.gov) 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 § 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
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 § 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 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 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.
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 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
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.
2.

Add § 73.3556 to read as follows:

§ 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 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: 7/2/2024 8:45 am; Publication Date: 7/3/2024]