Despite the telework restrictions in place at the FCC, regulatory life goes on, with the Commission continuing to process applications and deliver decisions every day. One of those decisions released yesterday clarified the FCC’s rural radio policy, and its application to noncommercial FM stations. The rural radio policy was adopted a decade ago to preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through city of license changes. The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy). The decision yesterday upheld prior decisions in the same proceeding which concluded that, for noncommercial reserved-band stations, the appropriate contour to analyze is the 60 dBu contour. If that contour would cover more than 50% of an urbanized area after a city of license change, the change will generally be prohibited for any station not now providing such coverage over an urbanized area.
The licensee in this case had argued that this decision was illogical, as the rural radio prohibition for commercial stations is only triggered when the 70 dBu contour covers more than 50% of the urbanized area – not the 60 dBu contour. The FCC rejected that argument, saying that the policy being advocated was more appropriately raised in a rulemaking, not in an application case like this. The FCC’s finding in this case would mean that two broadcasters, one commercial and one noncommercial, could propose moves from rural locations to the same new city of license and propose to operate from the exact same antenna with the exact same power levels and height above average terrain, and the noncommercial application would be denied as it would be deemed an application for the urbanized area because its 60 dBu contour covered more than 50% of that area, while the commercial station would be granted as its 70 dBu did not reach 50% of the urbanized area. Two stations providing exactly the same service to the same urbanized area would be treated differently – one as if it serves the urbanized area, the other as if it would not.
The rural radio prohibition has been subject to much criticism over the years (see, for instance, our articles here, here and here). We’ve suggested from time to time that this policy is one that might be considered by the FCC in its modernization of media regulation proceeding. The prohibition was meant to protect program diversity in rural markets, even if there was no economic base to support that rural service. Moreover, in recent years, there has developed a multiplicity of programming options available in rural areas through national services like satellite radio. The policy has also had the effect of freezing competition in urban markets, where stations have in many cases already been consolidated into commonly owned clusters. New entrants, whose most cost-effective way of entering a market may be to move a rural station into that market, find it difficult to do so because of the rural radio policy. That is one of the reasons that many advocacy groups for minority ownership have called for the repeal of this policy (see, for instance, the comments of MMTC in the modernization of media docket). Yesterday’s decision might just create more supporters for the demise of this policy among noncommercial licensees.
Courtesy Broadcast Law Blog