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The MusicFirst Coalition, the Future of Music Coalition and low-power advocacy REC Networks have jointly asked the Federal Communications Commission to reverse its decision allowing radio more leeway in simulcasting. The trio said the FCC’s August decision to abolish the Radio Duplication Rule will “invite a reduction in diversity of programming” while also encouraging radio owners to “hoard spectrum.” They also hinted at a future legal challenge the groups might take.

In a rule change that took effect last month, the Commission approved, on a 3-2 party-line vote, the elimination of the simulcast rule that had been in effect since 1964. The Radio Duplication Rule, last updated in 1992, had limited stations to airing up to 25% of total hours in an average broadcast week of duplicative programming when there is a substantial 50% overlap of their principal signal contours or common ownership.

The rulemaking originally was targeted to applying the change only to AM stations, restricting FMs to a waiver request option. But when it came up for a vote, at the urging of Commissioner Brendan Carr, the proposal was expanded to give the same freedom to FMs. Carr argued that radio stations regardless of which band face increased competition and economic pressures because of COVID. “The current pandemic has shown flexibility to rebroadcast programming can ensure continuity of operations, promote employee safety, and provide emergency information for residents through a station group’s service area,” Carr said.

That change morphed what had been an uncontroversial proposal to one that saw Democratic Commissioners Jessica Rosenworcel and Geoffery Starks withdraw their support. “The signal quality issues in these bands are totally different, the economic issues are not identical, and the impact of content duplication is not the same,” said Rosenworcel.

In a petition for reconsideration, the three groups said what was adopted was “highly problematic both substantively and procedurally” and should be overturned. They argue the expansion to FM was more than just a “logical outgrowth” of the proposal first released. Instead, they said the Commission failed to comply with the Administrative Procedure Act when the FCC invited comments on whether to modify or eliminate the rules on AM but made no mention of such a change for FMs in its draft proposal.

The petition for reconsideration acknowledges that REC Networks and others filed comments earlier this year arguing against elimination of the FM portion of the Radio Duplication Rule, while the National Association of Broadcasters submitted comments in favor of the change.

MusicFirst, Future of Music, and REC Networks also believe the pandemic impact is not enough of a reason to adopt such an enduring rule change. “The COVID-19 pandemic, while the cause of considerable distress for owners of many FM stations, is a temporary event,” they said. The trio called the elimination of the FM portion of the Radio Duplication Rule a “permanent and overarching” move. Had a financially distressed FM faced the prospect of going dark, it could have simply filed a waiver request, they said. “Every broadcaster who takes advantage of the elimination of the FM portion of the Radio Duplication Rule will, by engaging in duplication of programming, necessarily homogenize its programming over multiple radio frequencies,” they told the FCC.

If the FCC chooses to reverse course, something that is unlikely, it could mean that any broadcaster that started simulcasting stations would need to break those combinations apart. But it is not clear how many stations, if any, began duplicating their programming on stations during the last month because of the rule’s elimination.