David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

FCC rules currently prohibit radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. In preparation for the FCC’s open meeting on August 6, the FCC released its draft order proposing to eliminate that rule as to AM stations (as we wrote on Friday 7/17). As the draft order looks to eliminate the rule only for AM stations while retaining that rule for FM stations, it is worth taking a deeper look at this tentative decision particularly as one of its implications is that the FCC may well be allowing AM stations to transition to all-digital operations.

The draft decision provides two reasons for eliminating the rule for AM stations. First, it suggests that the challenging economic and competitive status of AM radio justifies the decision to allow duplication by AM stations that operate in the same area. Keeping a station operational and providing some service is preferred over letting that station go silent. The economic condition of the AM band was determined to alone be justification for the decision to permit duplication. But the FCC provided a second reason – one that suggests that the FCC is seriously considering the proposal (about which we wrote here and here) to allow for all-digital AM stations. In the draft order, the FCC says that allowing AM program duplication would provide an opportunity for an AM station to go all-digital while still broadcasting its programming on another AM station in the current analog format – allowing listeners to hear the station even if they do not yet have a digital AM receiver.

As to FM, the draft decision says that the economics of FM are such that there is not the same need to allow program duplication. Permitting duplication, in the FCC’s eyes, would limit competition and format diversity on the FM band. The decision does note that, in case of an economically distressed station, the FCC would consider a waiver to allow duplication if the choice is between duplicated service and no service at all.

The draft order will be considered at the FCC’s August 6 meeting. Watch for the FCC’s final action on this case on or before that date.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership. 

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