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Duplication Rule Vote Lacked Due Process, Critics Say

They criticize NAB's "ad hominen" attack and press FCC for partial repeal

future of music coalition logo
Future of Music Coalition logo

Three petitioners are firing back at the National Association of Broadcasters in their debate about the radio duplication rule and whether the Federal Communications Commission allowed a last-minute “switcheroo” before voting to kill it.

The petitioners are REC Networks, musicFIRST Coalition and Future of Music Coalition. At issue is whether the FCC acted properly last year when it ended the rule for commercial FM stations as well as AMs.

The three groups want to overturn the inclusion of FMs. Their petition, filed in November, has been the subject of strongly worded back-and-forth comments filed with the FCC.

Ex parte in question

The former rule prohibited commercial AM and FM stations from duplicating more than 25 percent of an average week’s programming on commonly-owned stations in the same service (AM or FM), in the same geographic market.

The FCC last August killed it by a 3–2 vote in part to “help struggling stations stay on the air” and help with a potential voluntary digital transition in AM. It also called the change part of its effort to streamline and modernize its media rules.

But the draft order that the FCC had published ahead of that meeting explicitly said the rule was to be changed only for commercial AM stations. Shortly before the day of the vote, FM stations were added to the proposal.

The critics, which believe this change will inevitably lead to less program diversity, said the FCC added FM after the NAB lobbied Republican commissioners “on the literal eve of the applicable Sunshine Agenda Period.” They said this timing effectively prevented others from further advocating prior to the vote.

So in November they asked the FCC to revoke the FM part of the decision. They believe the FCC violated due process in allowing a “180 degree switcheroo” after NAB had made a critical last-minute presentation without due public discussion.

NAB countered with a vigorous filing this month, as we’ve reported. It said the FCC vote was justified, that the critics didn’t understand the business fundamentals of radio, and that musicFirst and FMC were being “retaliatory” because of the separate issue of performance royalties. [Read more on NAB’s filing.]

Latest filing

Now the three groups are criticizing the NAB for making an “ad hominem attack.” They say in their reply comments that the NAB didn’t even try to address their complaint that the FCC failed to follow proper procedures.

“Instead, NAB asks the commission to simply accept its unsupported assertion that there is so little demand by broadcasters for program duplication on commonly-owned FM stations, that the commission shouldn’t worry about radio owners actually taking advantage of the rule change,” they wrote.

“NAB’s argument fails to take into account that larger corporate owners of FM radio stations could engage in widespread local duplication of FM programming in the wake of this needlessly drastic rule change … Such widespread duplication of programming would necessarily harm the public interest in program diversity at local market levels.”

The groups pointed out that another critic, Common Frequency, said the FCC broke its own rules by failing to issue a public notice about NAB’s ex parte meeting until after the vote. Common Frequency also said the NAB and FCC both publicly misidentified the recipients of NAB’s presentation as the Media Bureau, not the majority commissioners who had the authority to vote on the matter.

The three groups concluded by again calling for the FCC to reinstate the FM portion of the rule. Instead they want the commission to monitor waiver applications for local FM duplication of programming “in order to determine how often, and under what types of circumstances, owners seek relief from the rule designed to protect the public interest in programming diversity on local FM airwaves.”