12196 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 18–349; FCC 23–117; FR 

ID 200880] 

2018 Quadrennial Regulatory Review— 

Review of the Commission’s 

Broadcast Ownership Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) retains the broadcast 

ownership rules with minor 

modifications in compliance with the 

Telecommunications Act of 1996 which 

requires the Commission to review its 

broadcast ownership rules 

quadrennially to determine whether 

they are necessary in the public interest 

as a result of competition. Specifically, 

the Commission retains the Dual 

Network Rule, modifies the Local Radio 

Ownership Rule to make permanent the 

interim contour-overlap methodology 

long used to determine ownership limits 

in areas outside the boundaries of 

defined Nielsen Audio Metro markets 

and in Puerto Rico, and modifies the 

Local Television Ownership Rule to 

reflect changes that have occurred in the 

television marketplace and current 

industry practices. 

DATES: Effective March 18, 2024, except 

for changes to Commission Forms 

required as the result of the rule 

amendments adopted herein which are 

delayed indefinitely. The Commission 

will publish a document in the Federal 

Register announcing the effective date 

for changes to the Commission Forms. 

FOR FURTHER INFORMATION CONTACT: Ty 

Bream, Ty.Bream@fcc.gov, of the 

Industry Analysis Division, Media 

Bureau, (202) 418–0644. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, FCC 23–117, adopted on 

December 22, 2023, and released on 

December 26, 2023. The full text of this 

document is available at https://

docs.fcc.gov/public/attachments/FCC23-117A1.pdf and via electronically via 

the search function on the 

Commission’s Electronic Document 

Management System (EDOCS) web page 

at https://www.fcc.gov/edocs. 

Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. Alternative 

formats are available for people with 

disabilities (Braille, large print, 

electronic files, audio format, etc.) and 

reasonable accommodations (accessible 

format documents, sign language 

interpreters, CART, etc.) may be 

requested by sending an email to 

fcc504@fcc.gov or calling the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), 1–844–4–FCC–ASL 

(1–844–432–2275 (videophone). 

Synopsis 

I. Introduction 

1. With this Report and Order (Order), 

we bring to a close the 2018 

Quadrennial Review proceeding. In this 

Order, we retain the existing media 

ownership rules and adopt minor 

modifications that better tailor them to 

the current media marketplace. The 

record of this proceeding demonstrates 

that while the media industry has 

experienced both unforeseen challenges 

and substantial changes since the last 

quadrennial review, broadcasters retain 

a uniquely important role serving the 

American public in their local 

communities. The COVID–19 pandemic 

has underscored the importance of 

readily available and easily accessible 

news and information at the local 

community level, for which broadcast 

outlets remain a critical source. Despite 

the proliferation of new forms and 

sources of programming, broadcast 

television and radio remain essential to 

achieving the Commission’s goals of 

competition, localism, and viewpoint 

diversity. 

2. Based on our careful review of the 

record, we find that our existing rules, 

with some minor modifications, remain 

necessary in the public interest. 

Specifically, we retain the Dual Network 

Rule and the Local Radio Ownership 

Rule, the latter of which we modify only 

to make permanent the interim contouroverlap methodology long used to 

determine ownership limits in areas 

outside the boundaries of defined 

Nielsen Audio Metro markets and in 

Puerto Rico. We likewise retain the 

Local Television Ownership Rule with 

modest adjustments to reflect changes 

that have occurred in the television 

marketplace. The existing Local 

Television Ownership Rule ensures 

competition among local broadcasters 

while allowing for flexibility should the 

circumstances of local markets justify it. 

Accordingly, today we update the 

methodology for determining station 

ranking within a market to better reflect 

current industry practices, and we 

expand the existing prohibition on use 

of affiliation to circumvent the 

restriction on acquiring a second topfour ranked station in a market. We find 

that the modifications adopted today 

will enable the Commission to promote 

competition, localism, and viewpoint 

diversity more effectively going forward. 

II. Background 

3. Consistent with the statutory 

requirement directing the Commission 

to review its media ownership every 

four years, the Commission initiated 

this Quadrennial Review on December 

12, 2018, by adopting a Notice of 

Proposed Rulemaking (NPRM), 84 FR 

6741 (Feb. 28, 2019). In the NPRM, the 

Commission sought comment on 

whether the three media ownership 

rules subject to this review—the Local 

Radio Ownership Rule, the Local 

Television Ownership Rule, and the 

Dual Network Rule—remain necessary 

in the public interest in their current 

forms or whether the rules should be 

modified or eliminated. 

4. At the time the NPRM was released, 

litigation was still pending as a result of 

the Report and Order that concluded the 

2010 and 2014 Quadrennial Reviews 

(2010/2014 Quadrennial Review Order), 

81 FR 76220 (Nov. 1, 2016), and a 

subsequent Order on Reconsideration 

(2010/2014 Quadrennial Review Order 

on Reconsideration), 83 FR 733 (Jan. 8, 

2018). In the 2010/2014 Quadrennial 

Review Order, the Commission resolved 

its 2010 and 2014 proceedings and kept 

five structural ownership rules largely 

intact: the Local Television Ownership 

Rule, the Local Radio Ownership Rule, 

the Newspaper/Broadcast CrossOwnership Rule, the Radio/Television 

Cross-Ownership Rule, and the Dual 

Network Rule. In addition, the 2010/ 

2014 Quadrennial Review Order 

reinstated the Commission’s previous 

revenue-based eligible entity standard 

as a means to promote broadcast 

ownership by small businesses and new 

entrants. Under this standard an 

‘‘eligible entity’’ is any entity that 

qualifies as a small business under 

revenue-based standards established by 

the Small Business Administration. In 

turn, the Commission’s rules afford such 

qualified eligible entities additional 

flexibility, for example, by extending 

the time required to construct a 

broadcast facility or raising the 

threshold at which ownership strictures 

are triggered. Several parties filed 

Petitions for Reconsideration of the 

2010/2014 Quadrennial Review while 

others sought judicial review in the D.C. 

Circuit Court of Appeals and the Third 

Circuit Court of Appeals. 

5. On November 16, 2017, the 

Commission responded to the Petitions 

for Reconsideration and adopted an 

2010/2014 Quadrennial Review Order 

on Reconsideration, which, among other 

things, reversed certain elements of the 


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2010/2014 Quadrennial Review Order, 

most notably by repealing the 

Newspaper/Broadcast Cross-Ownership 

Rule and the Radio/Television CrossOwnership Rule and revising the Local 

Television Ownership Rule. 

Specifically, the Commission revised 

the Local Television Ownership Rule by 

eliminating the prior Eight-Voices Test 

and adopting a case-by-case review 

process for proposed transactions 

involving new combinations of top-four 

rated stations in a local market. Though 

it declined to revise the market 

definition relied on in the Local Radio 

Ownership Rule, the Commission 

adopted a presumption for certain 

transactions involving embedded 

markets. Embedded markets are smaller 

markets that are located within the 

boundaries of a larger Nielsen Audio 

Metro market. The Commission also 

eliminated the Television Joint Sales 

Agreement Attribution Rule readopted 

in the 2010/2014 Quadrennial Review 

Order, while retaining the Shared 

Services Agreement disclosure 

requirements adopted therein. A joint 

sales agreement (JSA) is an agreement 

that authorizes one station (the broker or 

the brokering station) to sell some or all 

of the advertising time on another 

station (the brokered station). Further, 

the Commission adopted an Incubator 

Program and sought comment on how to 

structure and implement the program. 

6. On August 2, 2018, after notice and 

comment, including consultation with 

the Commission’s Advisory Committee 

on Diversity and Digital Empowerment 

(ACDDE), the Commission adopted the 

Incubator Order, which established an 

incubator program for radio 

broadcasters designed to increase 

diversity by addressing the barriers to 

new and diverse station ownership, in 

particular lack of access to capital and 

operational expertise. The Incubator 

Order provided a structure whereby 

established AM and FM broadcasters 

could offer financial, technical, and 

operational assistance to new and 

diverse entrants. In return for successful 

incubation, established broadcasters 

could receive a limited waiver of the 

Local Radio Ownership Rule, allowing 

them to acquire another station in a 

market that would otherwise be 

prohibited by the Local Radio 

Ownership Rule, provided the market is 

‘‘comparable’’ to the market in which 

the broadcaster successfully incubates 

another station. The Commission 

considered a market to be ‘‘comparable’’ 

to the market where the incubation 

relationship occurred ‘‘if, at the time the 

incubating entity seeks to use the 

reward waiver, the chosen market and 

the incubated market fall within the 

same market size tier under our Local 

Radio Ownership Rule and the number 

of independent owners of full-service, 

commercial and noncommercial radio 

stations in the chosen market is no 

fewer than the number of such owners 

that were in the incubation market at 

the time the parties submitted their 

incubation proposal to the 

Commission.’’ 

7. Several parties sought review of the 

2010/2014 Quadrennial Review Order 

on Reconsideration in the D.C. Circuit 

and Third Circuit Court of Appeals. 

These petitions were consolidated 

before the Third Circuit Court of 

Appeals with the previously filed 

reviews of the 2010/2014 Quadrennial 

Review Order. On September 23, 2019, 

the Third Circuit vacated and remanded 

the bulk of the Commission’s actions in 

the 2010/2014 Quadrennial Review 

Order on Reconsideration, opining that 

the Commission had failed to consider 

adequately how the rule changes would 

impact female and minority ownership. 

On December 20, 2019, the Media 

Bureau issued an Order reinstating the 

rules as set forth in the 2010/2014 

Quadrennial Review Order. 

8. In the wake of the Third Circuit’s 

decision, the Commission and broadcast 

industry petitioners filed separate 

Petitions for Writ of Certiorari before the 

Supreme Court, each asking the 

Supreme Court to review and overturn 

the Third Circuit’s decision on different 

grounds. On October 2, 2020, the 

Supreme Court granted the petitions for 

a writ of certiorari and consolidated the 

cases, ultimately hearing oral argument 

on January 19, 2021. On April 1, 2021, 

the Supreme Court, in a unanimous 

opinion, upheld the rules as adopted 

and eliminated in the Commission’s 

2010/2014 Quadrennial Review Order 

on Reconsideration. The Supreme Court 

reaffirmed the Commission’s ‘‘broad 

authority to regulate broadcast media in 

the public interest’’ and stated that 

under the Administrative Procedure 

Act’s arbitrary and capricious standard, 

a court may not substitute its own 

policy judgment for that of the agency 

so long as the action is reasonable and 

reasonably explained. In this instance, 

the Supreme Court found that the 

Commission appropriately analyzed the 

evidence and data it had before it, and 

came to a reasonable conclusion that the 

rules no longer served the public 

interest. Finally, the Court noted that it 

did not reach, and therefore left 

undisturbed, issues regarding whether 

section 202(h) authorizes or requires the 

Commission to consider, or prohibits 

the Commission from considering, 

minority and female ownership when it 

conducts its quadrennial reviews. 

9. Accordingly, the Supreme Court 

upheld the Commission’s decision to 

eliminate the Newspaper/Broadcast 

Cross-Ownership and Radio/Television 

Cross-Ownership Rules and revise the 

Local Television Ownership Rule. It 

also upheld the Commission’s decision 

to eliminate the Television Joint Sales 

Agreement Attribution Rule while 

retaining the Shared Services 

Agreement disclosure requirements. The 

Court likewise upheld the Commission’s 

decisions on the ‘‘eligible entity’’ 

definition and the creation of a diversity 

incubator program. 

10. On June 4, 2021, the Media 

Bureau adopted an order, 86 FR 34627 

(June 30, 2021), reinstating the 2010/ 

2014 Quadrennial Review Order on 

Reconsideration, the Incubator Order, as 

well as the revenue-based eligible entity 

definition from the 2010/2014 

Quadrennial Review Order. Moreover, 

cognizant of how much time had passed 

since the original comment period 

closed, the Bureau released a public 

notice, 86 FR 35089 (July 1, 2021), 

seeking to refresh the record in the 2018 

Quadrennial Review proceeding and 

received extensive comment. The 

Bureau asked commenters to review and 

comment on any materials that had been 

filed in the proceeding since the original 

comment period closed. The Media 

Bureau also sought any new and 

relevant information, including new 

empirical and statistical evidence, 

proposals, and detailed analysis. 

Additionally, the Bureau sought 

comment on how the media 

marketplace had evolved since early 

2019 and whether new technological 

innovations had spurred noticeable 

trends or changed industry practices, as 

well as how any trends had impacted 

how consumers obtain local and 

national news and information. 

III. Standard of Review 

11. We reaffirm in this proceeding the 

long-standing framework under section 

202(h) of the Telecommunications Act 

of 1996, pursuant to which we examine 

the rules subject to the Quadrennial 

Review to determine if they remain 

necessary in service of our three 

traditional policy goals—competition, 

localism, and viewpoint diversity. We 

find that the language of the statute, 

judicial precedent, and the record in 

this proceeding support retaining our 

traditional multi-factor approach, and 

we reject suggestions that we reinterpret the statute as requiring solely 

a competition-centric review. In 

addition, consistent with past 

Commission determinations, we find 


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that section 202(h) grants us discretion 

to make rules more or less stringent to 

ensure they serve the public interest. 

We also conclude that under this 

approach, and consistent with past 

reviews, we will consider whether our 

existing rules are consistent with 

minority and female ownership and to 

evaluate potential harms, if any, to 

minority and female ownership that 

would result from any changes we make 

thereto. 

12. As stated above, the media 

ownership rules subject to this 

Quadrennial Review are the Local Radio 

Ownership Rule, the Local Television 

Ownership Rule, and the Dual Network 

Rule. These rules are found, 

respectively, at 47 CFR 73.3555(a), (b), 

and 47 CFR 73.658(g). Section 202(h) of 

the Telecommunications Act of 1996 

requires the Commission to review these 

rules every four years to determine 

whether they ‘‘are necessary in the 

public interest as the result of 

competition’’ and to ‘‘repeal or modify 

any regulation [the Commission] 

determines to be no longer in the public 

interest.’’ Consistent with the guidance 

of the Third Circuit, the Commission 

has previously considered the language 

‘‘necessary in the public interest’’ to be 

a ‘‘ ‘plain public interest’ standard under 

which ‘necessary’ means ‘convenient,’ 

‘useful,’ or ‘helpful,’ not ‘essential’ or 

‘indispensable.’ ’’ Furthermore, the 

Commission has applied the principle 

that there is no ‘‘presumption in favor 

of repealing or modifying the ownership 

rules,’’ but rather, that the Commission 

has the discretion ‘‘to make [the rules] 

more or less stringent.’’ Accordingly, the 

Commission’s review under section 

202(h) focuses on determining whether 

there is a reasoned basis for retaining, 

repealing, or modifying each rule 

consistent with our long-standing public 

interest goals of competition, localism, 

and viewpoint diversity. 

13. Parties presented arguments 

related to the proper interpretation of 

section 202(h) to the Supreme Court in 

FCC v. Prometheus. Subsequent to the 

Supreme Court’s decision, in the 2021 

Update Public Notice, the Media Bureau 

sought comment on various issues, 

including whether there were any legal 

factors that the Commission should 

consider as part of its 2018 Quadrennial 

Review. In response, several 

commenters opine regarding how the 

Commission should interpret section 

202(h) going forward in the wake of FCC 

v. Prometheus, as well as their views 

regarding the impact of the Supreme 

Court’s decision on the Commission’s 

consideration of minority and female 

ownership in this proceeding. 

14. As we have many times in the 

past, and consistent with Congress’s 

directive in section 202(h), we review 

the rules that are subject to the 

Quadrennial Review to determine 

whether they are necessary in the public 

interest as the result of competition and 

with the express statutory purpose of 

repealing or modifying any rule that is 

no longer in the public interest. In 

conducting that review, our 

determination as to whether the rules 

remain necessary in the public interest 

focuses primarily on our longstanding 

policy goals of competition, localism, 

and viewpoint diversity. In addition to 

those core policy goals, the Commission 

has also considered whether its rules are 

consistent with, and the effect, if any, 

changes to its rules would have on, 

minority and female ownership of 

broadcast stations, and we do so as well. 

15. As noted above, the Supreme 

Court did not consider the Third 

Circuit’s prior conclusions regarding the 

interpretation of section 202(h)—in fact, 

the Supreme Court explicitly declined 

to reach such issues. Therefore, as an 

initial matter, the Third Circuit’s 

guidance, as well as the Commission’s 

application of that guidance in past 

quadrennial reviews, continues to 

inform our analysis. Consistent with 

that precedent, and as discussed in 

more detail below, we reject calls to 

depart from precedent or to reinterpret 

section 202(h) in a manner that would 

abandon our traditional multi-factor 

framework in favor of an approach 

focused solely on competition or that 

would permit only the relaxation or 

elimination of the rules. 

16. First, consistent with the Third 

Circuit’s guidance in Prometheus I and 

Commission precedent, we continue to 

find that ‘‘necessary in the public 

interest’’ is a ‘‘ ‘plain public interest’ 

standard under which ‘necessary’ means 

‘convenient,’ ‘useful,’ or ‘helpful,’ not 

‘essential’ or ‘indispensable.’ ’’ The 

Commission has applied this 

interpretation repeatedly in its previous 

quadrennial reviews, and we continue 

to find that this understanding of 

‘‘necessary in the public interest’’ is the 

most reasonable and logical 

interpretation. 

17. Second, we decline NAB’s 

invitation to re-interpret section 202(h) 

in order to find a presumption in favor 

of deregulation, and we disagree with 

the assertion that section 202(h) only 

allows for the repeal or relaxation of a 

rule. Rather, as we have concluded in 

prior quadrennial reviews and the 

courts have upheld, we find that the 

Commission may ‘‘make [the rules] 

more or less stringent’’ after reviewing 

and considering the state of competition 

in the media marketplace. As the Third 

Circuit held in Prometheus I, section 

202(h) does not carry a presumption in 

favor of deregulation, nor is it a ‘‘oneway ratchet.’’ We continue to find that 

the iterative process established by 

section 202(h) compels us to ‘‘repeal or 

modify any regulation [the Commission] 

determines to be no longer in the public 

interest.’’ Based on the plain language of 

this directive, and the use of the word 

‘‘modify,’’ we reiterate that the 

Commission is not merely relegated to 

repealing or relaxing a rule that, over 

time, has become unnecessary or 

obsolete. Instead, where an existing rule 

as written is ‘‘no longer in the public 

interest,’’ the Commission can modify 

that rule (for instance, by making it 

more or less restrictive, changing the 

structure of the rule, or closing 

loopholes) to ensure that the rule better 

serves the public interest. Contrary to 

NAB’s suggestion, the logic of a 

deregulatory presumption undercuts the 

references in section 202(h), in both its 

text and legislative history, to evaluating 

the rules in the public interest. We 

further believe that it would be counter 

to the public interest to deregulate by 

either repeal, relaxation, or inaction 

(e.g., by ignoring competitive 

developments that run counter to the 

public interest) to the point that a few 

entities may dominate a media market. 

There is no indication that it was 

Congress’s intention when it passed the 

1996 Telecommunications Act to adopt 

a presumption in favor of deregulation, 

or to alter the then established principle 

under the Administrative Procedure Act 

(APA) that if there is any presumption, 

it is not against regulation but against 

changes in current policy that are not 

justified by the rulemaking record. 

18. Third, we agree with commenters 

who assert that FCC v. Prometheus 

reaffirmed our broad statutory authority 

to regulate broadcast stations in the 

public interest. As the Supreme Court 

noted, agencies are entitled to deference 

assuming that they act in a ‘‘zone of 

reasonableness’’ and have ‘‘reasonably 

considered the relevant issues and 

reasonably explained the decision.’’ The 

Supreme Court held further in City of 

Arlington, Tex. v. FCC, that any 

statutory ambiguities should be 

‘‘resolved, first and foremost, by the 

agency’’ so long as the agency stays 

‘‘within the bounds of reasonable 

interpretation.’’ Accordingly, we 

conclude that the Commission has 

considerable latitude in our 

interpretation and application of section 

202(h), and the Supreme Court’s recent 

decision in FCC v. Prometheus only 


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affirms this conclusion by underscoring 

the Commission’s broad discretion. 

19. Accordingly, we reaffirm that our 

assessment of whether the structural 

ownership rules remain in the public 

interest continues to focus on the 

Commission’s longstanding policy goals 

of competition, localism, and viewpoint 

diversity. The Commission has long 

held that the public interest is furthered 

by promoting the principles of 

competition, localism, and viewpoint 

diversity to ensure that a small number 

of entities do not dominate a particular 

media market, a holding we reaffirm in 

this current Quadrennial Review. 

Indeed, as early as the 1998 Biennial 

Review (the first review required by 

section 202(h)), the Commission 

rejected calls by commenters to consider 

only competition in the context of 

section 202(h) reviews. Looking at the 

statutory language of section 202(h), the 

Commission noted at the time that the 

phrases ‘‘necessary in the public 

interest’’ and ‘‘as the result of 

competition’’ could not be separated 

and, read together, the language 

‘‘appears to focus on whether the public 

interest basis for the rule has changed as 

a result of competition, and does not 

appear to be intended to limit the 

factors we should consider.’’ Further, 

the Commission noted that, in the 

legislative history of the 1996 

Telecommunications Act, Congress 

expressed diversity concerns regarding 

the media marketplace. For example, 

the legislative history highlights the 

national need to promote ‘‘diversity of 

media voices, vigorous economic 

competition, technological 

advancement, and promotion of the 

public interest, convenience, and 

necessity’’ and twice pairs diversity 

with competition as factors for the 

Commission’s consideration in its 

decisions regarding the marketplace. 

The Senate Conference Report states 

that ‘‘in the Commission’s proceeding to 

review its television ownership rules 

generally, the Commission is 

considering whether generally to allow 

such local cross ownerships, including 

combinations of a television station and 

more than one radio station in the same 

service. The conferees expect that the 

Commission’s future implementation of 

its current radio-television waiver 

policy, as well as any changes to its 

rules it may adopt in its pending review, 

will take into account the increased 

competition and the need for diversity 

in today’s radio marketplace that is the 

rationale for subsection (d).’’ It also 

states that ‘‘the Commission may also 

permit VHF/VHF combinations where it 

determines that doing so will not harm 

competition and diversity.’’ 

20. In light of our continued 

adherence to this approach, and based 

on the record, our discretion, and the 

text of section 202(h), we reject calls to 

revise the Commission’s longstanding 

approach in favor of reading the statute 

narrowly to focus on, or elevate, either 

the reference to the ‘‘public interest’’ or 

the reference to ‘‘competition’’ 

individually and in the absence of the 

other. Instead, we agree with 

commenters who suggest that we 

embrace a ‘‘ ‘plain public interest’ 

standard’’ that does not place emphasis 

on one public interest goal over another 

and continue to read the phrase 

‘‘necessary in the public interest as the 

result of competition’’ in its entirety and 

in a manner that we find logically 

marries the two references. We continue 

to find that such an interpretation 

appropriately recognizes the importance 

and meaning of the phrase ‘‘necessary in 

the public interest,’’ which Congress 

affirmatively included and has long 

been read to encompass several 

important public policy goals, alongside 

the distinct term ‘‘competition,’’ which 

is consistent with the larger thematic 

context of the 1996 Act. The broader 

scope of the public interest inquiry is 

also reflected in the additional language 

in section 202(h), which defines the 

inquiry as whether these rules are ‘‘no 

longer in the public interest,’’ a term not 

limited to a focus on effects on 

competition. Thus, throughout 

Quadrennial Reviews over the years, the 

Commission has modified and 

eliminated rules that it deemed to be 

‘‘no longer in the public interest.’’ Those 

inquiries have not been confined to 

effects on competition, but have 

included analyses of viewpoint 

diversity and localism as well. At some 

point, then, competition might reach a 

point where, as the result of such 

competition, certain of our rules would 

be ‘‘no longer in the public interest’’ to 

achieve the Commission’s stated public 

interest goals. Quadrennial review is the 

forum in which the Commission takes 

account of that progress in light of all 

three of these goals. 

21. Accordingly, we disagree with 

NAB’s interpretation that Congress 

intended to elevate competition as the 

‘‘preeminent factor’’ to guide the 

Commission’s review under section 

202(h), and we reject the attempt to 

revisit this long-resolved issue. We 

similarly disagree with NAB’s 

contention that the tenets of statutory 

interpretation, including the reference 

to competition in section 202(h) (rather 

than any other specific public interest 

factors), support its interpretation that 

the Commission’s section 202(h) review 

should consider competition as the 

primary factor in evaluating the rules. 

As noted above, the text of section 

202(h) requires the Commission to 

determine whether our rules remain 

‘‘necessary in the public interest as the 

result of competition.’’ In the past, the 

Commission has consistently 

interpreted the reference in section 

202(h) to the ‘‘public interest’’ as 

incorporating our traditional policy 

objectives under that standard, namely, 

competition, localism, and viewpoint 

diversity. Congress envisioned a future 

where changes in the amount and type 

of competition could one day render 

some or all of our structural media 

ownership rules unnecessary. The crux 

of the phrase, and indeed of section 

202(h), however, is whether these 

competitive market forces are satisfying 

the public interest objectives that our 

rules are intended to serve, such that 

our rules are ‘‘no longer necessary . . . 

as the result of competition.’’ 

Ultimately, we cannot ignore the fact 

that Congress included the words 

‘‘public interest’’ in section 202(h), and 

those words need to be treated as 

prominently and with equal reverence 

as the mention of competition. For 

instance, had Congress wished to do so, 

it could have omitted the phrase ‘‘public 

interest’’ and simply directed the 

Commission to review its rules to 

determine whether ‘‘any such rules are 

necessary as the result of competition.’’ 

Instead, Congress elected to include the 

concept of the ‘‘public interest’’ together 

with that of competition, knowing full 

well that service to public interest, 

convenience, and necessity is the 

foundation of the Commission’s rules. 

And as noted above, it underscored that 

more general reference to the public 

interest analysis in describing the 

inquiry as whether rules are ‘‘no longer 

in the public interest.’’ We conclude 

that there was a reason Congress used 

these references to the public interest, 

and that it is reasonable to interpret 

these references in light of all three of 

the well-established criteria for that 

public interest analysis. Similarly, NAB 

suggests that, had Congress chosen to, it 

could have omitted the phrase ‘‘as the 

result of competition’’ and simply 

instructed the Commission to determine 

whether a rule remains ‘‘necessary in 

the public interest,’’ thereby making 

competition co-equal with other public 

interest goals. NAB asserts that 

Congress’s decision to do otherwise and 

to specifically mention competition was 

intended to single out one particular 

element of the public interest analysis. 

Contrary to NAB’s position, however, it 


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does not follow that Congress’s 

inclusion of the phrase ‘‘as the result of 

competition’’ indicates Congress 

intended to elevate competition among 

other traditional public interest goals. 

Rather, as we have explained, 

Congress’s inclusion of the phrase ‘‘as 

the result of competition’’ reflects an 

ongoing statutory directive to the 

Commission to account for the results of 

an evolving competitive landscape in 

evaluating the continued necessity of its 

structural ownership rules to fulfill its 

public interest goals. This seems 

perfectly logical given the changes 

brought about, and envisioned, by the 

1996 Act. As we discuss in more detail 

below and with respect to our 

individual rules, this involves 

evaluating whether the media 

marketplace has delivered—and would 

continue delivering absent our rules— 

each of the public interest benefits of 

competition, localism, and viewpoint 

diversity that our rules seek to further. 

If not—that is, if the competitive 

marketplace would not deliver these 

benefits in the absence of our rules—we 

conclude that our rules still remain 

‘‘necessary in the public interest,’’ and 

we cannot conclude that such rules are 

‘‘no longer in the public interest,’’ even 

after accounting for the results of 

competition to date. Contrary to NAB’s 

concerns, then, we do not interpret 

section 202(h) in a way that would 

ignore or read the word ‘‘competition’’ 

out of the statute; instead, we interpret 

it in a way that gives meaning to that 

word in context. By contrast, we find 

that NAB’s interpretation would read 

out the reference to the ‘‘public 

interest,’’ which even at the time of the 

1996 Act, was a longstanding and wellknown term in the context of the 

Commission’s media regulation. Over 

the years, the Commission has further 

fleshed out that term in the context of 

the Quadrennial Review to encompass 

three tangible public interest goals— 

competition, localism, and viewpoint 

diversity—which have been further 

interpreted, articulated, and defined 

with substantial detail through the 

Commission’s Quadrennial Review 

notices and orders. As such, contrary to 

NAB’s arguments, we find that there is 

no non-delegation problem with our 

interpretation, because we are not 

interpreting our public interest mandate 

to be unmoored from any defined or 

articulable policy goal. Instead, we have 

articulated three clear and longstanding 

policy goals—competition, localism, 

and viewpoint diversity—that have long 

been aligned with the public interest 

standard applicable to the media 

marketplace. We find that this 

interpretation is consistent with how 

the Commission has applied the 

standard over time and best reconciles 

the two phrases within it—‘‘necessary 

in the public interest’’ and ‘‘as the result 

of competition.’’ Even if, for argument’s 

sake, one accepts NAB’s contention that 

section 202(h) is focused first and 

foremost on competition, it raises a 

subsequent question about what the 

threshold is for how much competition 

is necessary to justify elimination of a 

rule. Our consistent interpretation 

essentially speaks to that subsequent 

question, in that it asks if there is 

competition sufficient to produce the 

public interest benefits the Commission 

has traditionally looked to the rules to 

foster. Moreover, as we discuss below 

with regard to particular rules, we find 

that even under a competition-only 

standard, loosening our rules and 

allowing additional consolidation (or, 

under some proposals, unlimited 

consolidation) would cause substantial 

harm to the public interest. Moreover, 

despite NAB’s interest in relitigating 

this issue, nothing in the Supreme 

Court’s decision in FCC v. Prometheus 

warrants revisiting the Commission’s 

established interpretation of section 

202(h). 

22. To be clear, competition has 

always been, and remains, a key 

consideration in the Commission’s 

Quadrennial Review process, but it is 

not the only consideration encompassed 

by the public interest standard or by 

section 202(h). As discussed below, we 

remain committed to examining the 

media marketplace, acknowledging new 

and additional forms of competition 

where they exist, and evaluating 

whether market forces—as they have 

evolved—satisfy public interest 

objectives, such that our rules as 

currently devised are no longer 

‘‘necessary in the public interest as the 

result of competition.’’ We note that 

NAB recommends the Commission 

review each ownership rule based upon 

the public interest rationale at the time 

it was adopted to see if competition had 

rendered it no longer necessary, and, 

according to NAB, once a rule is 

deemed to no longer serve a particular 

goal, the Commission should no longer 

test the rule’s relationship to that goal. 

We do not think section 202(h) demands 

such a narrow approach—i.e., its 

quadrennial nature and the statutory 

reference to the ‘‘public interest’’ 

suggest an intent to be flexible in 

accounting for new, different, or 

changed rationales over time—and as 

NAB notes, historically, the rationales 

for certain rules have evolved over time 

as part of the quadrennial review 

process. 

23. Finally, even as we reaffirm here 

that our traditional policy goals of 

competition, localism, and viewpoint 

diversity continue to serve as the 

lodestars to guide us in our Quadrennial 

Review proceeding, we note that the 

Commission has traditionally also 

considered other aspects of the public 

interest, including the impact of its 

ownership rules on minorities and 

women. In particular, and as the 

Supreme Court noted in FCC v. 

Prometheus, ‘‘[t]he FCC has also said 

that, as part of its public interest 

analysis under section 202(h), it would 

assess the effects of the ownership rules 

on minority and female ownership.’’ 

While NAB challenges the notion of 

considering the impact of the media 

ownership rules on minority and female 

ownership in our quadrennial reviews, 

arguing that the Supreme Court did not 

say that the Commission has to consider 

minority and female ownership as part 

of the Quadrennial Review proceeding, 

we continue to find that our public 

interest standard is broad and that the 

impact of our rules on broadcast 

ownership by minorities and women 

remains an important part of our multifactor public interest inquiry. Indeed, 

the Supreme Court did not say we have 

to consider any particular policy goal. In 

fact, as NAB notes and discussed above, 

the Supreme Court did not reach the 

question of section 202(h) interpretation 

at all. Under this precedent, we are not 

bound to consider the three traditional 

policy goals of competition, localism, 

and viewpoint diversity. Moreover, we 

do not have to consider minority and 

female ownership as an important part 

of our larger public interest goal of 

diversity (which, most notably and 

historically, includes viewpoint 

diversity). Nonetheless, the Supreme 

Court did not alter the Commission’s 

discretion to consider these factors, in 

the manner we choose, and we elect in 

this proceeding, as the Commission has 

previously, to do so. Accordingly, as we 

have in the past, we continue to 

consider whether our current rules are 

consistent with (i.e., do not disserve) 

opportunities for minority and female 

ownership and whether any proposed 

changes to those rules would be likely 

to result in harm to minority and female 

ownership. 

24. In this way, consideration of the 

impact of our rules on minority and 

female ownership is related to, and 

consistent with, the broader aim of our 

structural ownership rules in ensuring 

the diffuse ownership of broadcast 

stations. As the Commission has noted 

in the past, a general policy goal of 


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diversity may encompass different 

forms of diversity. One central goal of 

our structural ownership rules, in 

particular, has been, and remains, 

promoting a diversity of viewpoints. 

Our rules do so by limiting the 

aggregation of stations in any single 

entity’s hands and thereby fostering a 

multiplicity of speakers. The 

Commission, in general, also has 

recognized the disproportionately low 

number of stations owned by minorities 

and women and has embraced the 

objective of better understanding and 

addressing this situation. By limiting 

the aggregation of stations among a few 

owners, we continue to conclude that 

our existing ownership limits preserve 

ownership opportunities for many 

different types of owners, including 

minority and female owners. 

25. As has always been the case in the 

Commission’s application of section 

202(h), the public interest analysis 

required by the statute has been 

conducted as a multi-factor review in 

which no one factor is controlling. To 

the extent there are conflicts between 

competing goals (e.g., a rule or rule 

change would promote one factor while 

harming another), the Commission 

weighs the effects and determines 

whether, on balance, the rule serves the 

public interest. Consideration of 

minority and female ownership is no 

exception to that approach. 

26. We conclude that the record in the 

current proceeding does not establish 

concrete, affirmative steps the 

Commission can or should take with 

respect to our structural ownership 

rules to address concerns regarding 

minority and female ownership, but we 

remain committed to examining barriers 

to minority and female ownership of 

broadcast stations and expect that the 

upcoming 2022 Quadrennial Review 

proceeding will provide an opportunity 

to examine more specifically what can 

or should be done within the context of 

our structural ownership rules. In 

addition, we note that the Commission 

has taken several actions beyond its 

quadrennial reviews, such as improving 

its collection and analysis of broadcast 

station ownership information on FCC 

Form 323 and 323–E, and chartering the 

Communications Equity and Diversity 

Council (CEDC), that are intended to 

provide the Commission with more 

information about the state of minority 

and female broadcast ownership and to 

promote the important goal of 

increasing such ownership. Moreover, 

we remain committed, as Free Press 

suggests, to analyzing how changes to 

broadcast ownership rules may impact 

future opportunities for women and 

minorities. Indeed, the Commission’s 

Office of Economics and Analytics 

recently conducted an analysis and 

released a white paper on minority 

ownership of broadcast television 

stations that will continue to inform our 

understanding of the television market 

and the diversity of ownership. And, as 

discussed below with respect to our 

rules, we find in this proceeding that 

our existing rules remain consistent 

with the objective of improving 

ownership diversity, including minority 

and female ownership, and would cause 

no harm. 

IV. Media Ownership Rules 

A. Local Radio Ownership Rule 

27. As explained below, we conclude 

that the Local Radio Ownership Rule— 

which limits both the total number of 

radio stations an entity may own within 

a local market and the number of radio 

stations within the market that the 

entity may own in the same service (AM 

or FM)—remains necessary to promote 

the Commission’s public interest goals 

of competition, localism, and viewpoint 

diversity, in accordance with our 

foregoing analysis. We therefore retain 

the current rule. The only modification 

we adopt is to make permanent the 

interim contour-overlap methodology 

long used to determine ownership limits 

in areas outside the boundaries of 

defined Nielsen Audio Metro markets 

and in Puerto Rico. 

28. We decline commenters’ requests 

to modify our presumption regarding 

embedded markets adopted in 2017. 

Likewise, we reject calls to eliminate or 

ease the rule’s ownership limits in an 

effort to help station owners stem the 

loss of listeners and advertising 

revenues. We take seriously the 

challenging circumstances confronting 

broadcast radio in today’s media 

marketplace, but the record does not 

persuade us that further consolidation 

would meaningfully address the 

problems radio faces. Rather, additional 

consolidation within radio markets is 

not only likely to decrease competition, 

viewpoint diversity, and localism but 

also is inconsistent with our statutory 

mandate to disseminate licenses as 

widely as possible. Ultimately, we find 

that allowing one entity to own more 

radio stations in a market than currently 

permitted would harm competition 

without achieving the benefit sought by 

some of enabling station owners to 

compete more effectively with social 

media companies and national 

advertising platforms like Google and 

Facebook. 

29. The Local Radio Ownership Rule 

allows an entity to own: (1) up to eight 

commercial radio stations in radio 

markets with at least 45 radio stations, 

no more than five of which may be in 

the same service (AM or FM); (2) up to 

seven commercial radio stations in radio 

markets with 30–44 radio stations, no 

more than four of which may be in the 

same service (AM or FM); (3) up to six 

commercial radio stations in radio 

markets with 15–29 radio stations, no 

more than four of which may be in the 

same service (AM or FM); and (4) up to 

five commercial radio stations in radio 

markets with 14 or fewer radio stations, 

no more than three of which may be in 

the same service (AM or FM), provided 

that the entity does not own more than 

50% of the radio stations in the market 

unless the combination comprises not 

more than one AM and one FM station. 

The limitation on the number of stations 

an entity may own in a single service, 

AM or FM, is typically referred to as the 

subcap limit. Overlap between two 

stations in different services is allowed 

if neither of those stations overlaps a 

third station in the same service. When 

determining the total number of radio 

stations within a market, only fullpower commercial and noncommercial 

radio stations are counted for purposes 

of the rule. Radio markets are defined by 

Nielsen Audio Metros where applicable, 

and the contour-overlap methodology is 

used in areas outside of defined and 

rated Nielsen Audio Metro markets. An 

exception to this market definition 

approach is Puerto Rico, where the 

contour-overlap methodology applies 

even though Puerto Rico is a Nielsen 

Audio Metro market. 

30. In its last quadrennial review, the 

Commission concluded that local radio 

ownership limits promote competition, 

a public interest benefit that the 

Commission found to be a sufficient 

basis for retaining the current rule. 

Additionally, the Commission affirmed 

its previous findings that competitive 

local radio markets help promote 

viewpoint diversity and localism, and it 

deemed the rule consistent with the 

Commission’s goal of promoting 

minority and female broadcast 

ownership. Accordingly, the 

Commission retained the rule without 

modification, although it provided 

several clarifications regarding the rule’s 

implementation. Subsequently, on 

reconsideration, the Commission 

adopted a presumption to use in 

evaluating transactions involving radio 

stations within embedded markets (i.e., 

smaller markets, as defined by Nielsen 

Audio, that are contained within the 

boundaries of a larger Nielsen Audio 

Metro market) where the parent market 

currently has multiple embedded 

markets (i.e., New York, NY and 


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Washington, DC). A transaction would 

qualify for the presumption if the 

applicants demonstrated: (1) 

compliance with the numerical 

ownership limits in each embedded 

market using the Nielsen Audio Metro 

methodology, and (2) compliance with 

the ownership limits in the parent 

market using the contour-overlap 

methodology applicable to undefined 

markets in lieu of the Commission’s 

ordinary parent market analysis. The 

presumption supports waiving the 

numerical ownership limits in existing 

parent markets where an applicant can 

demonstrate both compliance with the 

numerical ownership limits in the 

embedded market, as well as 

compliance with the ownership limit 

using the contour overlap method. The 

Commission stated that the presumption 

would apply pending further 

consideration of embedded market 

transactions in this 2018 quadrennial 

review. 

31. The NPRM asked generally 

whether the current Local Radio 

Ownership Rule remains necessary in 

the public interest to promote 

competition, localism, or viewpoint 

diversity. It also sought comment on 

several specific issues regarding the 

radio rule, including whether to retain 

the rule’s current market definition, 

market size tiers, numerical limits, and 

AM/FM subcap limits. In particular, the 

NPRM sought comment on whether the 

Commission should make permanent 

use of the contour-overlap methodology 

for areas not within Nielsen Audio 

Metro markets. In addition, it asked 

about the treatment of embedded 

markets and the effect of the rule on 

minority and female ownership. 

32. For the reasons discussed below, 

we find that the Local Radio Ownership 

Rule remains necessary in the public 

interest as the result of competition. 

There is no question that the broader 

media environment within which 

broadcast radio operates has changed 

dramatically since the radio rule was 

enacted in 1996. Consumer choice in 

audio entertainment has grown with the 

launch of satellite radio, the 

introduction of audio streaming 

services, and the proliferation of 

podcasts. There is no consensus in the 

record, however, regarding whether 

changes to the Local Radio Ownership 

Rule would enable radio owners to 

respond to these developments more 

effectively, or even, if so, whether those 

benefits would outweigh potential 

harms to competition, localism, or 

viewpoint diversity. The commenters 

were deeply divided in their responses 

to almost every issue raised in the 

NPRM. As discussed below, after 

considering the conflicting arguments in 

the record, and the split that exists even 

within the radio industry, we agree with 

those commenters asserting that 

loosening the rule would harm 

competition to the detriment of 

listeners. 

33. Market Definition. As in the past, 

we continue to find that the relevant 

market to consider for purposes of the 

Local Radio Ownership Rule is the radio 

listening market. We further find that 

due to the unique characteristics of 

broadcast radio, it would not be 

appropriate to include satellite or nonbroadcast audio sources, such as 

internet streaming services, in that 

market at this time. Notably, this finding 

is consistent with our findings in prior 

quadrennial reviews, where we looked 

at the unique characteristics of 

broadcast radio and the lack of 

substitutability with other audio 

sources, elements that remain 

fundamentally unaltered in spite of 

larger marketplace changes. 

34. Moreover, we find that the nature 

of the larger advertising market, in 

which advertising dollars have always 

flowed between different sectors in 

accordance with advertiser preferences, 

does not compel us to revise the way we 

view broadcast radio’s unique place 

within the audio landscape or the 

distinct market within which radio 

stations operate. First, we note that the 

U.S. Department of Justice (DOJ) 

consistently has found broadcast radio 

advertising to constitute a distinct 

product market. We recognize that some 

local businesses may have shifted 

increasing shares of their advertising 

budgets to internet platforms, such as 

Facebook and Google, while at the same 

time buying fewer radio advertisements. 

We also note, however, that the broader 

reach of radio advertising offers 

different benefits than the targeted 

advertising offered by Facebook and 

Google, such that at least some 

advertisers do not view them as 

substitutes. In addition, recent data 

indicate that broadcast radio dominates 

listening among ad-supported audio 

sources. We find that, within the 

broader advertising ecosystem, there 

still remains a distinct broadcast radio 

advertising market, such that our 

existing rule promotes competition 

among local radio stations through 

competition for advertising dollars, as 

well as along other dimensions that 

directly benefit listeners (e.g., quality, 

choice of offerings, innovation, among 

others). Moreover, for the reasons stated 

below, it is primarily as a result of this 

competition that broadcast radio 

stations are spurred continually to look 

for ways to improve service to the 

listening public. 

35. Although we acknowledge, as 

commenters contend, that there is today 

a broader audio landscape that includes 

a variety of audio options for 

consumers, many of which did not exist 

a decade or two ago, we continue to find 

that within that broader landscape, free 

over-the-air broadcast radio maintains a 

unique place and that radio stations 

compete primarily with other radio 

stations for listeners. Accordingly, we 

reject commenters’ claims that we must 

revise our market definition to reflect 

the ‘‘expanding universe of content 

providers’’ and should include nonbroadcast sources of audio content such 

as Sirius XM/Pandora, Spotify, 

YouTube Music, Apple Music, and 

Amazon Music. As the Commission 

previously has found, although the 

broader marketplace for the delivery of 

audio programming includes satellite 

and online audio sources, along with 

traditional broadcast radio, there are 

significant differences in the 

availability, reach, consumer 

engagement, and cost of these services, 

such that they deliver different value 

propositions to consumers. 

Significantly, of the various options 

available in the broader audio 

marketplace, generally speaking, only 

terrestrial broadcast radio both is 

available without a paid subscription 

and does not require access to internet 

service. Not only does this accessibility 

make broadcast radio uniquely and 

widely available, it also makes it a 

lifeline for many Americans, especially 

in times of local emergencies. In its 

Fourteenth Broadband Deployment 

Report, the Commission determined that 

despite significant gains in delivering 

access to broadband, in 2019, at least 

14.46 million Americans, or about 4% 

of the population, still lacked access to 

fixed terrestrial broadband service at a 

standard speed of 25/3 Mbps. 

Additionally, the Commission found 

that the adoption of fixed terrestrial 

broadband in the 10/1 Mbps speed tier 

was 67.2% among households in the 

quartile with the lowest poverty rate, 

versus 40.7% among households in the 

quartile representing the highest poverty 

rate. As commenters observe, radio is a 

trusted and essential source of public 

safety information during emergencies 

and in times of crises. 

36. We also continue to find that the 

local nature of broadcast radio makes it 

unique within the broader audio 

landscape. In particular, we note that 

broadcast radio is alone within the 

audio landscape in having an 

affirmative obligation to serve the needs 

and interest of the local community. As 


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part of their license obligations, each 

quarter, radio station licensees are 

required to submit a list of programs 

that treat issues faced by the local 

community. Such programs may 

include local news and public affairs 

programming. Moreover, there is 

evidence that being local is the defining 

value proposition that many radio 

stations see themselves as providing to 

consumers. As commenters point out, 

radio programming includes offerings 

with a community focus, such as 

program hosts that are known within 

the locality, music by local bands, 

reporting on local sports teams, and 

sponsorship of neighborhood festivals, 

which other audio services do not 

provide. As the Commission’s 2022 

Communications Marketplace Report 

states, ‘‘promoting a local on-air 

personality as the ‘face’ of a station may 

be an important way for a station to 

distinguish or brand itself from other 

stations in its market.’’ 

37. In addition, even with the 

emergence of new audio services and 

platforms, radio listenership remains 

strong and dominant within the broader 

audio marketplace in many key 

respects. Although commenters warn 

that the decline of radio listening during 

the pandemic is not likely to rebound to 

pre-pandemic levels, it is premature to 

determine whether the pandemic will 

have long-term effects on local radio. 

We find that forecasts of future declines 

of radio listenership and revenue are 

speculative, and therefore unreliable for 

the purposes of this review. Certainly, 

commenters provide some evidence that 

time spent listening to broadcast radio 

has declined, especially among younger 

audiences. Nonetheless, in 2018, Edison 

Research’s ‘‘Share of Ear’’ report 

allocates the share of time spent 

listening to audio sources for Americans 

aged 13 years old and over as follows: 

46% terrestrial broadcast radio, 14% 

streaming audio, 12% owned music, 

11% YouTube, 7% SiriusXM satellite 

radio, 5% TV Music channels, 3% 

podcasts, and 2% other sources. 

Similarly, a more recent Share of Ear 

report indicated that, in 2021, the total 

share of time spent listening to AM/FM 

radio remained the highest at 38%, and 

the share of time spent listening to 

podcasts had risen to only 5%. 

Additionally, while the gap in usage 

between broadcast and online audio 

programming has declined over time, 

terrestrial broadcast radio remains 

dominant and the number of weekly 

listeners to broadcast radio in the 

United States remains relatively stable. 

Moreover, historically, easy access to 

AM/FM radio inside automobiles has 

been a distinctive characteristic and 

advantage of broadcast radio, and in-car 

radio listening has rebounded as people 

return to their cars following the height 

of the pandemic. By contrast, some 

commenters claim that radio’s 

dominance over in-car listening is 

fading as Bluetooth and satellite radio 

capabilities become standard features in 

new cars. While there is no question 

that consumers are increasingly finding 

new audio sources to consume while 

driving, broadcast radio remains the 

clear top choice. Inside the home, we 

acknowledge there is a decreasing 

number of radios in households with 

the ubiquity of digital devices, like 

smartphones and smart speakers, that 

provide access to an array of audio 

content. Nonetheless, evidence further 

suggests that, even within the evolving 

marketplace, broadcast radio stations 

are embracing these new devices and 

finding additional ways to reach 

listeners. 

38. Ultimately, we agree with iHeart 

that ‘‘competitive pressures across 

platforms within the audio ecosystem 

are not determinative of what is the 

relevant market’’ for purposes of our 

Local Radio Ownership Rule. We reject 

NAB’s suggestion that the relevant 

competition is for ‘‘the public’s 

attention and time.’’ Since its inception, 

radio has competed with other types of 

entertainment for the public’s attention 

and time. Television, movies, books, 

newspapers, magazines, concerts, plays, 

and all manner of activities present 

consumers with countless options for 

how to spend their time or be 

entertained or informed. Today’s 

consumers have a broad selection of 

audio options that can be accessed on 

an increasing number of devices, but 

that does not mean competition among 

local radio stations should be weakened 

or that consumers and advertisers 

consider non-broadcast options to be 

appropriate substitutes for local radio. 

39. As we have acknowledged, in 

recent years, the audio landscape has 

seen the growth of streaming music 

services that have amassed millions of 

subscribers. Nonetheless, there is 

evidence that consumers may be most 

directly substituting online audio 

services for what would once have been 

purchases of recorded music rather than 

for live, local, free broadcast radio, and 

that consumers still flock to broadcast 

radio for elements that other audio 

sources in the marketplace are not 

currently providing. For instance, while 

advertising dollars may have started to 

flow to other sources over time, in 

filings with the Securities and Exchange 

Commission (SEC), iHeart (the largest 

radio station owner by revenue, number 

of stations, and number of markets) 

suggests that within the broader audio 

marketplace, there are distinct sectors 

that vie separately for listeners, and in 

some respects, serve as complements to 

one another. Specifically, iHeart states: 

Within the audio industry, companies 

operate in two primary sectors: [1] The 

‘music collection’ sector, which essentially 

replaced downloads and CDs and [2] The 

‘companionship sector, [in] which people 

regard radio and podcasting personalities as 

their trusted friends and companions on 

whom they rely to provide news on 

everything from entertainment, local news, 

storytelling, information about new music 

and artists, weather, traffic and more. We 

operate in the second sector and use our 

large scale and national reach in broadcast 

radio to build additional complementary 

platforms. 

As iHeart suggests, in general, 

broadcast radio continues to serve a 

distinct role in the marketplace by 

providing important entertainment, 

information, and ‘‘companionship’’ to 

listeners that other forms of audio 

content likely do not. Moreover, by 

contrast, online streaming services that 

offer access to tens of millions of songs 

and other audio tracks to listeners on 

demand are perhaps situated more 

directly as substitutes for traditional 

purchased music collections. 

40. For the reasons stated above, we 

find that the local radio listening market 

remains a distinct market for purposes 

of our Local Radio Ownership Rule 

analysis. We conclude that allowing 

further concentration within local radio 

markets would disserve listeners by 

jeopardizing the aspects of radio that 

make it a unique and appealing service. 

41. Market Size Tiers and Numerical 

Limits. Based on the record of this 

proceeding, we find that the Local Radio 

Ownership Rule as currently designed 

remains necessary in the public interest 

as the result of competition, and we 

reject proposals in the record to modify 

its market size tiers or numerical limits 

at this time. For example, NAB urges the 

Commission to repeal the radio rule 

entirely, or at a minimum, to loosen 

restrictions in the top 75 Nielsen Audio 

Metro markets to allow a single entity to 

own or control up to eight commercial 

FM stations, with no cap on AM 

ownership, and, outside of the top 75 

Nielsen markets and in unrated markets, 

to allow a single entity to own or control 

an unlimited number of AM and FM 

stations. NAB also proposes that an 

owner in the top 75 markets be 

permitted to own up to two additional 

FM stations (for a total of 10 FMs) in a 

market after successfully participating 

in the Commission’s incubator program. 

As discussed below, we find that the 


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existing rule continues to serve the 

public interest, that the record does not 

establish that permitting greater 

consolidation would benefit either the 

radio industry or the listening public, 

and that proposals to loosen the rule 

would reduce competition among 

broadcast radio stations to the detriment 

of listeners. For these reasons, we also 

reject various other proposals to relax 

the radio restrictions. 

42. We find that the current tiers and 

limits maintain an appropriate level of 

competition in the local radio markets 

to the benefit of listeners and the public. 

Ever since Congress established these 

demarcations more than two and a half 

decades ago, the Commission 

consistently ‘‘has found that setting 

numerical ownership limits based on 

market size tiers remains the most 

effective method for preventing the 

acquisition of market power in local 

radio markets.’’ We disagree with the 

notion that changes in the broader audio 

environment require a restructuring of 

the rule’s market size tiers or numerical 

limits. Not only do we find that the 

current limits promote our policy goals, 

but, as discussed below we conclude 

that allowing further consolidation 

would not ensure that local radio 

stations retain their listeners and 

advertisers. In addition, we note that the 

market tiers that NAB proposes would 

be determined by the size of the 

population in the Nielsen Audio Metro 

market. The current rule uses Nielsen 

markets as a starting point, but its tiers 

depend on the number of radio stations 

in the Nielsen market, rather than on 

how many people live in the market. 

Because the rule limits the number of 

stations an entity may own within a 

local market, we find that the most 

consistent and relevant measure upon 

which to base the rule’s tiers is the total 

number of stations in the market, a 

concept that has been applied as part of 

the rule for many years, is well 

understood, and provides a degree of 

certainty to applicants. Under the rule, 

if there are more total stations in a 

market, an entity can own more stations. 

In effect, this ensures that a certain 

number of stations in a market would 

not be owned by a single entity. By 

contrast, NAB’s proposal would permit 

ownership of eight stations in each of 

the top 75 markets as ranked by 

population, regardless of the total 

number of stations (or number of 

stations available to be owned by other 

entities) in the market. NAB’s proposal 

to eliminate all ownership limits in 

most markets and retain only FM limits 

in the largest 75 markets would 

represent a radical departure from the 

existing numerical limits and would 

allow an increase in consolidation that 

would significantly decrease existing 

competition. 

43. Commenters in favor of loosening 

radio ownership limits suggest that the 

broadcast radio industry, in general, is 

in dire need of relief and contend that 

its viability may be at stake if additional 

consolidation is not permitted. Other 

commenters, however, assert that the 

survival of the radio industry depends 

on keeping ownership limits in place to 

prevent massive consolidation that 

could result in a few national owners 

buying all or most of the stations in a 

market and piping in preset 

programming from distant headquarters. 

These commenters contend that relaxing 

the rule to ‘‘save’’ radio under NAB’s 

plan would have the opposite effect: 

destroying what is the very essence of 

local radio. We recognize that the record 

contains evidence showing that 

broadcast radio has experienced 

declines in listening shares and in 

advertising revenues in recent years, 

while streaming audio has seen growth 

in both areas. We further realize that 

broadcast radio, like other industries, 

has faced and continues to face 

challenges as technologies, market 

dynamics, and consumer behaviors 

evolve. Notwithstanding these 

challenges, we continue to find, as 

compelled by the instruction of section 

202(h), that the current structure of the 

ownership rule remains necessary to 

promote the Commission’s public 

interest goals. Moreover, we note that in 

any action that affects licensing, the 

Commission must be mindful of 

Congress’ directive to avoid excessive 

concentration of licenses and to 

disseminate licenses widely. Allowing 

all radio stations in a market to be 

licensed to one entity would demand an 

exceptional justification given this 

directive. In FCC v. Prometheus, the 

Supreme Court recognized the 

Commission’s longstanding policy of 

‘‘ensuring that a small number of 

entities do not dominate a particular 

media market.’’ In any event, we remain 

highly skeptical that permitting 

additional consolidation beyond that 

currently allowed under our rule is 

warranted or would address radio’s 

stated woes. 

44. For one thing, as we note above, 

broadcast listenership within the 

broader audio landscape remains 

relatively strong despite declines in 

radio’s popularity. In addition, 

broadcast radio revenue—the lifeblood 

of the industry—has shown signs of 

stability over the past decade. As the 

Commission found in its most recent 

Communications Marketplace Report, 

‘‘the primary source of revenue for 

commercial terrestrial radio stations is 

advertising’’ and while ‘‘total broadcast 

radio revenue dropped to $13.7 billion 

in 2020,’’ revenue then ‘‘rose to $14.8 

billion in 2021, resulting in a net 

decline of approximately 17% from 

2019 to 2021, due largely to the drop in 

demand for advertising due to the 

COVID–19 pandemic.’’ In fact, broadcast 

radio advertising revenue remained 

virtually flat from 2010 to 2019, which 

obviously is not preferable to steep 

growth, but also is not indicative of a 

prolonged or pronounced decline. 

Moreover, as broadcast radio companies 

expand into other parts of the audio 

marketplace (streaming, podcasts, etc.), 

online revenue for broadcast radio has 

seen substantial growth and stands as an 

‘‘area of potential growth’’ going 

forward. Perhaps tellingly, the total 

number of broadcast radio stations 

remained fairly steady, and actually 

increased slightly, between 2015 and 

2020, suggesting there has not been a 

massive shuttering of radio stations due 

to financial stress. 

45. We understand that radio stations 

depend on advertising revenues to 

survive and to provide free, over-the-air 

programming, as they have since the 

inception of broadcasting. However, 

evidence does not appear to show that 

owning more stations necessarily 

correlates to being able to attain 

proportionally more revenue (i.e., the 

number of owned stations and the net 

advertising revenue per station vary 

considerably among the top ten largest 

radio companies by net advertising 

revenue). While we recognize that 

adding more stations to a radio owner’s 

local holdings may offer some benefit to 

the owner, including the ability to 

reduce costs, it would come at a tradeoff 

to the public interest, and we agree, 

moreover, with those commenters who 

contend that it would not reverse the 

overall downward trend in the amount 

of time that American consumers spend 

listening to broadcast radio or encourage 

local advertisers to increase their radio 

advertising budgets, both of which our 

rule cannot address. Although NAB and 

others provide evidence that broadcast 

radio is losing advertising revenue to 

online platforms and digital audio, we 

find that greater consolidation is 

unlikely to improve the ability of local 

radio owners to regain their advertising 

losses, particularly given the dissimilar 

value propositions that they and large 

technology companies offer to 

advertisers. We agree with those 

commenters who assert that if further 

consolidation were allowed, smaller and 

independent radio stations could be 


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sacrificed needlessly based on an 

unrealistic premise that ever larger radio 

owners are the answer to compete for 

advertising on a level playing field with 

large technology companies. Or as one 

commenter put it, radio ‘‘will never outGoogle Google, or out-Facebook 

Facebook.’’ 

46. In any event, our conclusion that 

the current radio rule remains necessary 

in the public interest as the result of 

competition rests on the premise that 

the listening public is the constituency 

that the rule is intended to serve. The 

purpose of the rule is to ensure 

competition among broadcast radio 

stations within a market so that radio 

owners are motivated to provide the 

highest quality of service to the public. 

Reducing the number of competitors in 

a local market puts that quality of 

service at risk, threatens viewpoint 

diversity, and may reduce the amount of 

local programming available. Some 

commenters contend that if an owner is 

allowed to acquire the competing 

stations in a market, it will diversify the 

programming formats on its newlyacquired stations because it will not 

want to compete with itself. One has to 

question, however, whether that owner 

would maintain the same quality of 

service on its stations without facing 

external competition from other station 

owners. Furthermore, evidence in the 

record suggests that as the radio 

industry has become more consolidated 

over time, some types of formats have 

been reduced. 

47. Notably, the existing rule already 

allows a generous amount of common 

ownership within a radio market and 

does not limit ownership across 

markets, nor, any longer, across other 

media such as newspapers, television 

stations, or cable systems. For example, 

in the largest radio markets, one owner 

may own as many as eight radio 

stations, and up to five in the same 

service, and that same owner is 

permitted to own stations up to the limit 

in every local market in the country. 

Moreover, since the passage of the 1996 

Act, considerable consolidation already 

has taken place within the radio 

industry, and there is mounting 

evidence that it has not been without at 

least some negative effects for 

consumers. As some commenters 

observe, such consolidation has resulted 

in the homogenization of content; less 

local programming; fewer market entry 

opportunities for new or small owners, 

including minorities and women; 

employee layoffs; and competitive harm 

to the smaller station owners striving to 

remain in the market. The result is that, 

even under the current Local Radio 

Ownership Rule, there are some radio 

companies with hundreds of radio 

stations around the country and many 

radio markets are already quite 

concentrated, a fact that the 

Commission highlighted in the last 

quadrennial review. 

48. For instance, we find that within 

local radio markets, the largest station 

group owners continue to dominate 

other radio stations in terms of audience 

and revenue share. Specifically, 

evidence shows that the largest owners 

of commercial stations continue to enjoy 

substantial advantages in revenue 

share—on average, the largest station 

group in each Nielsen Audio Metro 

market has a 46.7% share of the 

market’s total radio advertising revenue, 

with the two largest owners accounting 

for 73.9% of the revenue. In more than 

a third of all Nielsen Audio Metro 

markets, the top two commercial station 

owners control at least 80% of the radio 

advertising revenue. According to BIA 

data, in the 50 largest markets, on 

average, the top two firms account for 

62.3% of radio advertising revenue in 

the market; in the 100 smallest markets, 

on average, the top two firms account 

for 81% of market revenue. With respect 

to ratings, the top four station group 

owners continue to dominate audience 

share. BIA data indicate that the four 

firm market concentration ratios (i.e., 

the percentage of audience share 

attributed to the four largest firms in the 

market) average 97.2% in smaller 

markets and 89.7% in the 50 largest 

markets. Even without accounting for 

the market shares of station groups 

beyond the largest, these data reflect the 

high level of concentration in local 

radio markets, where on average the top 

station group owner’s advertising 

revenue share hovers between 40 and 50 

percent. We therefore do not find that 

the current rule is overly burdensome or 

unduly restrictive, or that relaxing the 

existing numerical limits would 

promote competition in a manner that 

would be consistent with the public 

interest. The Herfindahl-Hirschman 

Index (HHI) is a commonly accepted 

measure of market concentration. The 

HHI is calculated by squaring the 

market share of each firm competing in 

the market and then summing the 

resulting numbers. For example, for a 

market consisting of four firms with 

shares of 30, 30, 20, and 20 percent, the 

HHI is 2,600 (302 + 302 + 202 + 202 = 

2,600). The U.S. Department of Justice 

(DOJ) and Federal Trade Commission 

(FTC) generally consider markets in 

which the HHI is between 1,500 and 

2,500 points to be moderately 

concentrated and consider markets in 

which the HHI is in excess of 2,500 

points to be highly concentrated. Under 

an HHI analysis, in a market where the 

market share leader has a share in 

excess of 50%, the market would be 

considered highly concentrated on the 

basis of that one firm alone (i.e., 502 = 

2,500). In a market where the market 

share leader has a share in excess of 

roughly 40%, the market would be 

considered moderately concentrated on 

the basis of that one firm alone (i.e., 402 

= 1,600). Arithmetically, the addition of 

other firms’ market shares would not 

make the market any less concentrated 

under an HHI analysis, as all market 

shares, no matter the quantity or size, 

are additive to the total HHI value for 

the market and that value would only 

increase with the addition of market 

share information for other firms. 

49. Indeed, we find that the current 

rule remains a backstop against further 

excessive consolidation. When the 

Commission repealed the Radio/ 

Television Cross-Ownership Rule in 

2017, it reasoned that any negative 

effects would be mitigated by the 

continued operation of the Local Radio 

and Local Television Ownership Rules, 

which would act as constraints on 

undue concentration. There is some 

evidence that, although a considerable 

amount of consolidation has occurred, 

the rule has prevented further excessive 

consolidation. For instance, although 

the market share information cited 

above reflects a high degree of 

concentration among the largest firms, it 

also appears that those numbers have 

remained fairly stable for the past 

decade or so under the existing 

ownership limits. For instance, the 

average advertising revenue market 

share of the largest station group in each 

market increased only slightly from 

45% in 2012 to approximately 47% in 

2022. Similarly, the combined market 

share for the top two station owners 

increased from 73% in 2012 to 

approximately 74% in 2022. 

50. On the other hand, NAB’s 

proposal of eliminating all limits in 

most markets and retaining only FM 

limits in the largest 75 markets would 

exacerbate the dominance of the larger 

firms. It would permit consolidation to 

the level of monopolization or near 

monopolization in many, if not most, 

markets. It would mean, for many 

markets, the potential to move from 

moderately concentrated today, under 

traditional antitrust standards, to 

another level of concentration 

altogether, and for others that are 

already highly concentrated, it would 

mean making them even more so. For 

instance, based on 2021 data from BIA 

Kelsey Media Access Pro, HHIs for 

advertising revenue share in radio 


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markets finds that there is one market 

with low concentration, 49 markets that 

are moderately concentrated, and 203 

markets that are highly concentrated. 

For listening share among commercial 

stations, there are no markets with low 

concentration, 40 markets that are 

moderately concentrated, and 213 

markets that are highly concentrated. 

Under NAB’s proposal, every one of 

these 253 markets would carry the risk 

of becoming highly concentrated or 

becoming even more highly 

concentrated if already so. Practically 

speaking, this effect could be 

particularly pronounced in the smallest 

markets (i.e., those outside the top 75) 

where NAB’s proposal to remove limits 

altogether would represent a radical 

departure from the current limits. For 

instance, most of the 178 markets 

outside the top 75 would be classified 

in one of the two smallest tiers per our 

existing rule (Tier 3 or Tier 4), with the 

majority (108) being considered Tier 3 

and having, on average, 10.3 

commercial FM stations. Under NAB’s 

proposal, then, in those 108 markets, an 

owner could increase its ownership 

from a maximum of four FM stations 

today to ten or more FM stations (or all 

such stations in the market). The 

potential effect on competition inherent 

in NAB’s proposal—which, as noted, is 

substantial—does not even account for 

any practical administrative difficulties 

that could be present with transitioning 

to a completely new approach to radio 

limits that sets a size cutoff based on 

Nielsen ranking (by households) rather 

than the number of stations in a market. 

51. Surely, further consolidation 

could have benefits for certain radio 

owners, but such benefits are not worth 

the cost of the real and likely harms that 

would result to the listening public from 

a further reduction in competition. In 

particular, we find that undue 

consolidation is likely to lead to radio 

stations becoming less responsive to the 

needs and interests of their local 

communities. As the Commission has 

noted previously, ‘‘[b]ecause stations 

have a duty to serve the needs of their 

local communities, localism has been a 

cornerstone of broadcast regulations for 

decades.’’ We find that the cost 

pressures and incentives associated 

with consolidation could be expected to 

work against the provision of 

programming responsive to local issues. 

Specifically, we think the cost 

incentives in favor of repurposing 

content on multiple stations—a practice 

that would be expected to expand with 

ownership of more stations in local 

markets—would work against vigorous 

competition for service responsive to 

local needs. 

52. In addition, we note that some 

commenters raise concerns about the 

effects that loosening limits on FM 

ownership could have on the AM band. 

Specifically, commenters opposing 

NAB’s proposal argue that eliminating 

the FM limit in the majority of radio 

markets and raising it from five to eight 

stations in the largest 75 markets would 

devalue the AM band by causing the 

migration of AM station owners to the 

FM band. They argue that migrating AM 

station owners would take audiences, 

advertising, programming, investment of 

capital, resources, and talent with them. 

They assert that the result would be 

counterproductive to the Commission’s 

AM revitalization efforts and would 

undermine the Commission’s incubator 

program by removing or reducing the 

incentive to participate in the program. 

NAB counters that its proposal, in fact, 

would promote AM revitalization by 

allowing owners to acquire more AM 

stations. It contends that radio stations 

in smaller markets need the regulatory 

relief its proposal would provide and 

that AM stations, in particular, are 

struggling. Because we decline to adopt 

NAB’s proposal, we need not reach a 

determination on whether the proposal 

would have a deleterious impact on the 

AM band due to a purported exodus of 

owners that commenters claim would 

occur. 

53. We acknowledge that even under 

the existing rule there may be instances 

in which smaller owners are 

increasingly finding it difficult to 

remain viable in the current radio 

industry (a fact that is perhaps not 

surprising given the dominance of the 

largest firms). While NAB and others 

present this as a rationale in favor of 

further consolidation, i.e., to allow 

larger firms to buy struggling smaller 

firms, we disagree. Rather, we agree 

with those commenters that assert that 

loosening the current rule would result 

in the disappearance of smaller stations 

from the market entirely, either because 

they would be more vulnerable to 

acquisition or because they would be 

unable to compete with the larger 

station groups that would expand their 

dominance if further consolidation was 

permitted. Excessive aggregation 

through acquisition of stations of any 

size disserves our policy goals of 

competition, diversity, and localism. In 

any event, we continue to find that there 

is ample leeway under the current rule 

for additional consolidation within 

limits. For instance, in looking at the ten 

largest radio station owners (by net 

advertising revenue), none has an 

average of more than five radio stations 

per market, suggesting there are markets 

where these companies could acquire 

additional stations, even under the 

current rule. What the current rule does 

constrain, however, is the further 

aggregation of market share by an 

already dominant firm in a local market. 

Put another way, even if it would be 

efficient for a struggling firm to exit the 

market, it does not follow that an inmarket competitor has to be, or should 

be, the one to acquire that firm. Instead, 

we find that a new entrant (or at least 

a new market entrant) would be 

preferable from the perspective of 

competition and diversity, and our 

current rule is conducive to such an 

outcome. The ten largest radio station 

owners, on average, own stations in 43 

markets, suggesting there may be more 

markets they could enter to pursue cost 

efficiencies and economies of scale 

under the current rule. 

54. AM/FM Subcaps. We conclude 

that, like the market tiers and associated 

ownership limits, the sub-limits on AM 

and FM ownership within the Local 

Radio Ownership Rule also remain 

necessary in the public interest given 

the current audio marketplace. The 

radio rule’s AM/FM subcaps limit the 

number of radio stations from the same 

service, i.e., AM or FM, that an entity 

may own in a single market. Currently, 

a broadcaster may not own more than 

five AM or five FM stations in markets 

in the largest market tier, four AM or 

four FM stations in markets in the two 

middle-sized tiers, or three AM or three 

FM stations in markets in the smallest 

tier. These subcaps, which were set by 

Congress in 1996, are intended to 

prevent excessive concentration in a 

particular service, to foster market entry, 

and to promote competition by 

accounting for the technological and 

marketplace differences between AM 

and FM stations. 

55. We find that the AM/FM subcaps 

continue to serve these purposes. The 

subcaps help prevent excessive common 

ownership of either AM or FM stations 

in a local market. Retaining a cap 

specific to FM stations addresses the 

concerns of commenters that relaxing or 

removing the FM subcaps potentially 

could cause AM stations to migrate to 

the FM band, resulting in a diminished 

AM band where lower-cost market entry 

opportunities for small owners, 

including minorities and women, are 

most likely. Moreover, despite the 

growing use of FM translators to 

transmit AM signals and the transition 

of some AM stations to digital radio, 

disparities between the AM and FM 

services persist. iHeart provides 

evidence that the number of AM 

stations has declined while the number 


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of FM stations has increased, and it 

states that quantitative data for audience 

listening and advertising revenue 

demonstrate ‘‘a large and increasing 

competitive gap between AM and FM 

radio stations’’ from 2010 to 2018. In the 

interest of preventing undue 

concentration among local stations in 

either band, we reject the proposals in 

our record aimed at modifying or 

eliminating the rule’s subcaps. 

56. Though iHeart and other 

commenters contend that elimination of 

the AM subcap would provide needed 

relief to the struggling AM band without 

risk of harming competition, we 

disagree. iHeart’s proposal to remove all 

limits and subcaps on AM stations 

while retaining all current limits and 

subcaps on FM stations would not 

create a risk of migration of AM owners 

to the FM band, which is one concern 

that has been raised regarding FM 

deregulation. However, we agree with 

those commenters who contend that AM 

deregulation would allow large owners 

of AM stations to buy up the smaller 

AM stations in their markets and could 

lead to excessive concentration within 

the AM band. iHeart asserts that there 

is no longer a risk of concentration in 

the AM band given ‘‘increasingly steep 

declines in audience listening to AM 

stations and the continuing erosion of 

advertiser revenue experienced by AM 

stations, especially when compared to 

FM stations.’’ However, we find that 

although AM stations overall tend not to 

achieve the ratings or revenues of FM 

stations, this disparity is by no means a 

universal truth. For instance, in each of 

the top five markets, there is an AM 

station among the top three stations in 

revenue. Additionally, throughout the 

253 Nielsen Audio Metro markets, there 

are 124 a.m. stations ranked in the top 

five in terms of all-day audience share, 

or approximately 10% of all top-five 

stations in those markets. Specifically, 

across all 253 Nielsen Audio Metro 

markets, there are 1,265 total stations 

that would be ranked in the top five 

(discounting any potential ties for the 

number five ranking), which means that 

AM stations account for approximately 

9.8% percent of the top five stations in 

these markets. So although, in general, 

FM stations may continue to enjoy some 

competitive advantages over AM 

stations, there continue to be many 

strong AM stations and AM remains a 

vital service. Further, four out of the top 

ten (and seven out of the top twenty) 

radio stations in the United States (as 

ranked by net advertising revenue for 

2021) are AM stations. Therefore, it 

cannot be presumed that AM stations 

would not be targets for acquisition if 

AM restrictions were eliminated. 

Regardless, even in markets where AM 

stations are not among the highestranked stations in the market, the AM 

limits and subcaps promote a 

competitive AM band by preventing 

excessive concentration. 

57. In addition, we find that reduced 

competition in the AM band would 

threaten the band’s distinctive qualities. 

Notably, some commenters observe that 

the AM band, in particular, includes 

more small broadcasters than the FM 

band, including minority and female 

licensees, and that it is important to 

preserve that diversity of ownership. 

AM stations also include more Spanish 

and Ethnic, News, Sports, and Talk 

formats relative to FM stations. Despite 

competitive developments that have 

continued to affect the AM and FM 

bands, relative to each other, we find 

that the public interest benefits of 

maintaining diffuse ownership within 

the AM and FM bands continue to 

support retaining the AM and FM 

subcaps. 

58. Methodology for Determining 

Compliance in Non-Nielsen Audio 

Markets. We will make permanent the 

Commission’s contour-overlap 

methodology that has been used on an 

interim basis to determine compliance 

with ownership limits in areas that are 

not within defined Nielsen Audio Metro 

markets. At the time the Commission 

adopted the use of Nielsen Audio 

Markets (formerly Arbitron Metro 

markets), it acknowledged that not all 

portions of the country fall into a market 

area defined by Arbitron or later 

Nielsen. In fact, a significant portion of 

the country, both in terms of geography 

and population is not located in such 

rated/defined markets, meaning that 

another method must be employed in 

those instances to determine the number 

of stations in a given market. 

Accordingly, the Commission 

previously stated that it would continue 

to use the former ‘‘contour-overlap 

methodology’’ to determine the relevant 

geographic market for purposes of 

ascertaining compliance with the 

relevant radio ownership market tiers 

and caps. In adopting the Arbitron 

Metro (now Nielsen Audio Metro) 

market definition for purposes of the 

radio rule in the 2002 Biennial Review 

Order, the Commission stated that the 

contour-overlap methodology would 

continue to apply to undefined markets 

on an interim basis while it explored the 

potential for a better substitute. While 

the Commission continued to apply the 

methodology on an interim basis, it 

adopted changes to the methodology 

that minimized what it found to be the 

more problematic aspects of that 

approach. Specifically, the Commission 

excluded from the market calculation 

radio stations that are commonly owned 

with the stations seeking to be 

combined and radio stations whose 

transmitter site is more than 92 

kilometers (58 miles) from the perimeter 

of the mutual overlap area. Under this 

approach, the relevant geographic 

market is defined by the cluster of 

stations with overlapping signal 

contours of a given strength. The 

contour-overlap methodology for 

defining radio markets and counting the 

radio stations that are in those markets 

uses the principal community contours 

of the commercial radio stations that a 

party seeks to own. The relevant radio 

market is defined as the area 

encompassed by the principal 

community contours of the commonly 

owned radio stations whose contours 

mutually overlap. Principal community 

contours also are used to count the 

number of radio stations in a radio 

market, that is, to determine the size of 

the market for purposes of applying the 

ownership limits. Specifically, in 

addition to the radio stations whose 

contours form the market, any station 

whose principal community contour 

intersects the market is considered to be 

in the relevant market. Although the 

Commission was initially critical of the 

contour-overlap methodology, and 

indeed abandoned it in favor of using 

markets defined by Arbitron or Nielsen 

ratings where such markets exist, it has 

continued to use the approach now on 

an ‘‘interim’’ basis for nearly 20 years 

for those areas that fall outside a rated 

market. In that time, and in various 

quadrennial proceedings, the 

Commission has invited commenters to 

offer alternatives to the methodology for 

use in non-rated areas, but ultimately 

has found no reason to revisit the 

approach. Rather, it has found 

previously that the revised contouroverlap methodology appeared to be 

working well. 

59. Seeking to resolve the issue once 

and for all, and either remove the 

‘‘interim’’ label or else find a suitable 

replacement, the Commission once 

again called for any potential 

alternatives to the contour-overlap 

method in the NPRM. The record 

neither offers any new alternative to the 

method, nor any opposition to its 

continued use in those areas of the 

country that are outside of a rated 

Nielsen Audio Market. Accordingly, 

because we find that the approach has 

worked sufficiently well for the past 20 

years and is familiar to both radio 

broadcasters and Commission staff, we 

will make permanent the Commission’s 


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contour-overlap methodology that has 

been used on an interim basis to 

determine ownership limits in areas that 

are not within defined Nielsen Audio 

Metro markets. Therefore, going 

forward, parties proposing a radio 

station combination involving one or 

more stations whose communities of 

license are not located within a Nielsen 

Audio Market must show compliance 

with the local radio ownership rule 

using the contour-overlap methodology. 

60. Embedded Markets. We decline 

requests from commenters to modify our 

presumption regarding embedded 

markets, which was originally adopted 

in 2017 and made applicable pending 

further consideration of embedded 

market transactions in this 2018 

Quadrennial Review proceeding. We 

now complete our 2018 Quadrennial 

Review and retain the presumption in 

its current form. As described above, 

embedded markets are smaller markets, 

as defined by Nielsen Audio, that are 

contained within the boundaries of a 

larger Nielsen Audio Metro market. In 

general, entities seeking to acquire a 

radio station in an embedded market 

must satisfy, separately, the numerical 

limits of the Local Radio Ownership 

Rule for both the embedded market and 

the overall parent market. In addition, 

our current policy includes a 

presumption in favor of waiving the 

general rule for radio stations in 

embedded markets where the parent 

market contains multiple embedded 

markets, provided two conditions are 

satisfied: (1) compliance with the 

numerical ownership limits using the 

Nielsen Audio Metro methodology in 

each embedded market, and (2) 

compliance with the ownership limits 

using the contour-overlap methodology 

applicable to undefined markets—in 

lieu of evaluating compliance with the 

numerical limits in the overall parent 

market. Currently, the only two markets 

for which the presumption is relevant— 

i.e., parent markets that contain 

multiple embedded markets—are New 

York, NY, and Washington, DC, and 

application of the presumption is 

limited to these markets. 

61. We find that the record, and the 

lack of applications received to date, 

supports not making any changes to our 

embedded markets policies at this time. 

In particular, we reject suggestions that 

we eliminate the policy that counts an 

embedded market station in both the 

embedded market and in the parent 

market in favor of counting embedded 

market stations only within an 

embedded market. In addition, we reject 

the suggestion that the waiver 

presumption should be extended to any 

and all future situations with multiple 

embedded markets, beyond New York 

and Washington, DC. Instead, after 

evaluating the presumption in the 2018 

Quadrennial Review proceeding, we 

retain the presumption in its current 

form. We agree that Connoisseur Media 

and others have demonstrated evidence 

in the past that embedded market 

stations primarily compete for listeners 

within the confines of their own 

embedded market, that is, against 

stations located within their own 

embedded market and those stations 

located in the main city of the parent 

market whose signals reach the 

embedded market (but not against 

stations in other embedded markets). It 

is precisely for these reasons that the 

Commission adopted the presumption 

in 2017. Nonetheless, we find that the 

proposal not to count embedded market 

stations toward an entity’s compliance 

with the limits in the parent market 

could lead to excessive concentration, 

allowing a single owner to combine 

parent market stations together with 

those in embedded markets in a way 

that harms competition within the 

embedded market. For instance, within 

the New York, NY parent market, 

suppose an entity owns eight stations, 

four in each of two embedded markets. 

If those stations do not count toward the 

limits in the parent market, then the 

entity would be free to acquire up to 

eight non-embedded stations in the New 

York, NY parent market. If, as 

Connoisseur Media claims, New York 

parent market stations compete for 

listeners in outlying embedded markets, 

then this change could effectively allow 

an entity to own a total of sixteen 

stations, twelve of which, according to 

Connoisseur Media’s claims, would be 

competing in each of two embedded 

markets (i.e., the four embedded market 

stations each competing within their 

respective embedded markets as well as 

the eight non-embedded parent market 

stations that presumably compete in 

each of the two embedded markets as 

well). Moreover, absent further 

experience with the existing 

presumption in practice, we remain 

unconvinced that there is a 

demonstrated need, or that it would be 

wise, to adopt additional flexibility at 

this time. For these same reasons, we 

decline to automatically extend the 

waiver presumption to all future 

situations involving multiple embedded 

markets. 

62. When the Commission adopted 

the embedded market presumption in 

2017, it stated that the presumption 

would ‘‘give Connoisseur—and other 

parties—sufficient confidence with 

which to assess possible future actions.’’ 

We find that this continues to be the 

case, as the presumption favors an 

entity’s ability to invest in multiple 

embedded markets without the stations 

it owns in one embedded market 

counting against its ownership of 

stations in the other. Moreover, the 

Commission anticipated that future 

transactions utilizing the presumption 

would ‘‘help inform our subsequent 

review of . . . the treatment of 

embedded market transactions.’’ In fact, 

however, during the time since 2017 

that the presumption has been in effect, 

no party has filed an application seeking 

to avail itself of the presumption. 

Moreover, the record in this proceeding 

contains no evidence to indicate that the 

current presumption is deterring such 

transactions or that that the 

presumption would be inadequate to 

facilitate their successful completion 

where the criteria of the presumption 

could be met. As a result, we find that 

the Commission is providing sufficient 

flexibility and certainty to prospective 

applicants and that we do not have any 

further experience or information 

supporting further policy or rule 

changes at this time. With regard to 

Connoisseur Media’s suggestion that our 

policy should apply to all future parent 

markets with multiple embedded 

markets, we find that it would be 

speculative and premature to consider 

how we will apply the presumption to 

all such future markets without 

understanding the particular 

competitive dynamics of those markets. 

As Connoisseur Media claims, the 

drawing of embedded markets is, at 

least in some sense, a function of 

geography, such that the competitive 

dynamics of future markets may or may 

not resemble those of the current two to 

which the presumption applies. It is 

possible that, even if applied to other 

markets, the presumption could be 

overcome by factors in future markets 

that we have not observed in the New 

York, NY or Washington, DC markets. 

63. Minority and Female Ownership. 

We find that the record provides no 

reason for the Commission to reevaluate 

its conclusions in the 2010/2014 

Quadrennial Review Order that the 

current Local Radio Ownership Rule 

remains consistent with the 

Commission’s goal of promoting 

minority and female ownership of 

broadcast radio stations. We retain the 

rule for the reasons stated above, 

particularly to promote competition 

among broadcast radio stations in local 

markets. The record does not contain 

persuasive evidence that relaxing the 

rule would boost minority or female 

radio ownership. To the contrary, 


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several commenters contend that 

loosening ownership restrictions could 

make it more difficult for minority and 

women owners to remain and/or to 

enter the local radio market. For 

example, NABOB opposes any changes 

to the local radio ownership rule and 

notes that increased consolidation of 

ownership in the broadcast industry 

reduces opportunities for minorities to 

enter the business or to grow. In 

contrast, NAB states that the best way to 

encourage broadcast ownership by new 

entrants, including minority and female 

owners, is to ensure access to capital 

and argues that the existing rule 

impedes investment in broadcasting by 

making other unregulated forms of 

media more attractive. We note that a 

balance must be struck between 

incentivizing investment in 

broadcasting and ensuring that stationbuying opportunities exist for new 

entrants. We find that the existing rule 

strikes the appropriate balance, 

especially considering that investment 

by new entrants is less likely in a 

market that is highly concentrated. We 

note that simply eliminating ownership 

limits would allow more consolidation. 

We also share commenters’ concerns 

that allowing greater consolidation 

could increase the challenges many of 

these relatively smaller stations face in 

competing for revenue in the 

marketplace and could reduce 

opportunities for new entrants, 

including minority and women owners, 

to participate in the market. 

64. In this context, we note, as 

discussed above, that the Commission 

has taken several actions, such as 

improving its collection and analysis of 

ownership information on FCC Form 

323/323–E, exploring access to capital 

through its re-chartered CEDC, and 

implementing the radio incubator 

program, that are intended to provide 

the Commission with more information 

about the state of minority and female 

broadcast ownership, or that seek to 

further the important goal of increasing 

minority and female ownership, 

objectives to which we remain 

committed. 

65. Cost-Benefit Analysis. The NPRM 

asked how the Commission should 

compare the benefits and costs of 

retaining, modifying, or eliminating the 

Local Radio Ownership Rule. As 

discussed above, commenters disagree 

regarding whether rule modifications 

would enable radio owners to respond 

more effectively to changes in the 

broader audio environment, or even, if 

so, whether any such benefits would 

outweigh potential harms to 

competition, localism, or viewpoint 

diversity. For all the reasons explained 

above, we conclude that any potential 

benefits that further consolidation might 

offer larger radio owners are outweighed 

by potential costs to the consumer 

stemming from such harms as weakened 

competition within the local broadcast 

radio market, increased homogenization 

of content, less local programming, the 

disappearance of stations from the 

market, and fewer opportunities for new 

and diverse market entrants. 

B. Local Television Ownership Rule 

66. In this section, we retain the 

existing Local Television Ownership 

Rule subject to minor modifications. As 

an initial matter, we find that the rule 

remains necessary to promote the 

Commission’s public interest goals of 

competition, localism, and viewpoint 

diversity. Specifically, we find that the 

Local Television Ownership Rule 

remains necessary to promote these 

goals given the unique obligations 

broadcast licensees have as trustees of 

the public’s airwaves to serve their local 

communities. 

67. In reaching our conclusion, we 

find that the relevant market for the rule 

should continue to focus on broadcast 

television stations, as no other source of 

video programming provides a 

substitute for broadcast television, and 

we retain the current numerical 

ownership limits. We also retain as a 

condition of common ownership that a 

broadcaster cannot acquire two stations 

ranked in the top four in audience share 

in a market—known as the Top-Four 

Prohibition—unless, at the request of an 

applicant, the Commission finds that 

such an acquisition serves the public 

interest, convenience, and necessity on 

a case-by-case basis. The Top-Four 

Prohibition does not prohibit a 

broadcaster from ending up with two 

top-four stations through organic 

growth. But we modify the methodology 

of the Top-Four Prohibition to reflect 

better the current state of broadcast 

industry practices. Specifically, as 

detailed further below, under the 

revised Local Television Ownership 

Rule adopted herein, a television 

station’s audience share ranking in a 

Nielsen Designated Market Area (DMA) 

will be determined based on the 

combined audience share of all free-toconsumer, non-simulcast multicast 

programming airing on streams owned, 

operated, or controlled by that station as 

measured by Nielsen Media Research or 

by any comparable audience ratings 

service. The Nielsen Company assigns 

each broadcast television station to a 

designated market area (DMA). The 

DMA boundaries and DMA data are 

owned solely and exclusively by 

Nielsen. Each DMA is a group of 

counties that form an exclusive 

geographic area in which the home 

market television stations hold a 

dominance of total hours viewed. There 

are 210 DMAs, covering the entire 

continental United States, Hawaii, and 

parts of Alaska. Some station owners 

simultaneously broadcast the primary 

programming stream of a second station 

they own on the nonprimary multicast 

stream of the other station they own in 

the same market. A nonprimary 

multicast stream is typically designated 

by appending a ‘‘.2’’ or greater digit to 

the channel number to distinguish such 

streams from a station’s primary stream 

which usually is designated with a ‘‘.1’’ 

suffix. We update the relevant daypart 

used to make audience share and ratings 

determinations to the metric that, based 

on Commission experience and 

consultation, most accurately reflects a 

station’s true performance given 

changes in the broadcast industry. 

Because the same daypart is also used 

to make audience share and ratings 

determinations in the context of failing 

stations waivers as provided in Note 7 

to section 73.3555 of the Commission’s 

rules, we find that our update to the 

methodology of the Top-Four 

Prohibition logically leads us to update 

also the failing station waiver 

methodology with respect to the daypart 

used. We also specify a definite time 

period over which ratings data should 

be averaged to minimize the impact of 

anomalous ratings periods. 

68. In addition, we extend a 

previously adopted measure in order to 

prevent further circumvention of the 

Top-Four Prohibition and ensure the 

efficacy of the Local Television 

Ownership rule. Pursuant to the 

changes we adopt herein, an entity will 

not be permitted to acquire a network 

affiliation and place it on a station or 

broadcast signal that is otherwise not 

counted as a station for purposes of the 

Local Television Ownership Rule as a 

way to circumvent the prohibition on 

such affiliation acquisitions adopted in 

the 2010/2014 Quadrennial Review 

Order. We retain the shared service 

agreement (SSA) disclosure requirement 

to continue providing transparency 

regarding the extent of cooperation and 

coordination between competing 

stations in a market. We also find that 

retaining the rule continues to preserve 

opportunities for a variety of different 

owners, including minority and female 

owners, who can contribute to the 

multiplicity of speakers in a market. 

Lastly, we find that the public interest 

benefits achieved by retaining the rule 

with the adopted changes outweigh the 


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potential economic cost of continued 

compliance with the rule. 

69. The Local Television Ownership 

Rule limits the number of full power 

television stations an entity may own 

within the same local market. The Local 

Television Ownership Rule provides 

that an entity may own up to two 

television stations in the same Nielsen 

DMA if: (1) the digital noise limited 

service contours (NLSCs) of the stations 

(as determined by Section 73.622(e) of 

the Commission’s rules) do not overlap; 

or (2) at the time the application to 

acquire or construct the station(s) is 

filed, at least one of the stations is not 

ranked among the top-four stations in 

the DMA, based on the most recent allday (9 a.m.-midnight) audience share, as 

measured by Nielsen Media Research or 

by any comparable professional, 

accepted audience ratings service. With 

respect to the latter provision—the TopFour Prohibition—an applicant may 

request that the Commission examine 

the facts and circumstances in a market 

regarding a particular transaction, and 

based on the showing made by the 

applicant in a particular case, make a 

finding that permitting an entity to 

directly or indirectly own, operate, or 

control two top-four television stations 

licensed in the same DMA would serve 

the public interest, convenience, and 

necessity. The Commission considers 

showings that the Top-Four Prohibition 

should not apply due to specific 

circumstances in a local market or with 

respect to a specific transaction on a 

case-by-case basis. 

70. The NPRM sought comment on 

the effects of rule changes made in the 

2010/2014 Quadrennial Review Order 

on Reconsideration and raised several 

issues for consideration related to 

changes in the video programming 

industry. In particular, the NPRM 

sought comment on whether the current 

version of the Local Television 

Ownership Rule remained necessary in 

the public interest as a result of 

competition. The NPRM also sought 

comment on whether the Local 

Television Ownership Rule is necessary 

to promote localism or viewpoint 

diversity. In response to broadcaster 

claims in previous quadrennial review 

proceedings that non-broadcast sources 

of video should be considered 

substitutes for broadcast video, the 

NPRM sought comment on whether and 

to what extent this was true, as well as 

how to incorporate non-broadcast video 

into market definition analyses. The 

NPRM then asked whether changes in 

the video programming industry 

support modification of the numerical 

limit of owning up to two television 

stations in the same market. If the 

Commission retained the Local 

Television Ownership Rule and the 

existing limits, the NPRM asked 

whether the Top-Four Prohibition 

should be retained or modified. The 

NPRM then sought comment on the 

prevalence of, and how to account for, 

broadcast stations placing content from 

the Big Four broadcast networks (ABC, 

CBS, NBC, Fox) on multicast streams 

and low power television stations. As a 

matter of diligence, the NPRM also 

sought comment on the implications, if 

any, of the television broadcast 

incentive auction and of the new 

broadcast television transmission 

standard. The NPRM also asked if the 

Commission should continue to require 

the filing of SSAs. Regarding minority 

and female television owners, the NPRM 

sought comment on how retaining, 

modifying, or eliminating the local 

television rule might affect minority and 

female ownership including potential 

entry into the market by these types of 

owners. Finally, the NPRM sought 

quantifications of the costs and benefits 

of its proposed changes. 

71. We find that the Local Television 

Ownership Rule remains necessary to 

promote the Commission’s public 

interest goals of competition, localism, 

and viewpoint diversity. No other 

source of video programming serves 

local communities as broadcast 

television does, particularly at low, or 

no, cost to consumers. The rule 

promotes competition among local 

broadcast television stations that, to this 

day, remain the only entities in the 

video marketplace that are licensed by 

the Commission with use of the 

airwaves to provide a broadcast 

television service, in exchange for a 

unique obligation to serve the public 

interest. Furthermore, although 

primarily focused on competition, as 

detailed further below, the rule 

continues to promote localism, as 

broadcasters have a unique obligation to 

supply programming of interest to their 

local communities and stations are 

likely to be more responsive to those 

local interests where there are other 

local competitors. The Commission has 

previously stated that a competitionbased rule, while not designed 

specifically to promote localism, may 

still have such an effect. The 

Commission has consistently found that 

broadcast licensees have an obligation 

to air programming that is responsive to 

the needs and interests of their 

communities of license. Similarly, the 

rule promotes viewpoint diversity by 

preserving opportunities for noncommonly owned stations to air a 

multitude of viewpoints through 

independent choices regarding the local 

news and other local programming on 

their stations. 

72. Accordingly, for these reasons we 

find that the Local Television 

Ownership Rule remains necessary in 

the public interest. We discuss below 

the various elements of the rule, the 

goals the rule serves, as well as adopt 

several key modifications to update 

application of the rule and to ensure its 

continued efficacy. 

73. Market definition. After careful 

review, we continue to find that 

broadcast television remains unique and 

non-substitutable with other sources of 

video programming, particularly with 

respect to fulfilling our traditional 

public interest objectives of competition 

(e.g., in terms of competition among 

local broadcast television stations and 

with respect to local programming), 

localism (e.g., in terms of supplying 

locally responsive programming), and 

viewpoint diversity (e.g., in terms of 

airing a multitude of viewpoints 

through local news and other local 

programming). Although some 

commenters contend that by defining 

the market to include only broadcast 

television the Commission fails to 

account for the myriad of video 

programming options now available to 

consumers, the Commission has 

acknowledged for some time the 

availability of other forms of video 

programming, even while continuing to 

find that broadcast television remains 

its own distinct market. Indeed, from 

video cassette recorders and DVDs, to 

subscription cable television services, to 

on-demand streaming services, video 

programming alternatives to free overthe-air broadcast television have existed 

for decades in a number of forms. The 

critical question in Quadrennial Review 

has been and continues to be whether 

and to what extent such video 

programming options can be considered 

substitutes to broadcast programming, 

or put another way, whether 

competitive market forces alone are 

proving sufficient to create a video 

marketplace that satisfies the public 

interest objectives long associated with 

broadcast television, such that our Local 

Television Ownership Rule can be 

deemed no longer ‘‘necessary in the 

public interest as the result of 

competition.’’ 

74. Although there are far more 

sources of video programming available 

today than there were when the Local 

Television Ownership Rule was first 

adopted, most commenters assert that 

non-broadcast programming is not a 

substitute to broadcast programming, 

which remains unique. We agree. The 

Commission has previously found that 


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the video programming market is 

distinct from other media markets 

because consumers do not view nonvideo media (e.g., audio or print media) 

as good substitutes for watching video, 

and there is no evidence in the current 

record that would disturb this finding. 

Notably, cable, satellite, and streaming 

media all have higher consumer fees as 

they require an additional service, such 

as internet access or cable or satellite 

service, as well as, often times, a 

subscription fee, in contrast to broadcast 

media, which consumers can access 

freely over the air, a distinction that 

keeps non-broadcast media from being a 

comparable alternative to broadcast 

television, especially for price conscious 

consumers. To this point, estimates 

suggest that 15% of U.S. television 

households (or 18 million households) 

use free, over-the-air television, a 

percentage that has increased in recent 

years, particularly as the number of 

consumers subscribing to pay TV 

alternatives continues to decline 

significantly. 

75. Moreover, the record reflects that 

despite its growing prevalence, online 

video still largely complements, rather 

than competes with, broadcast 

television. In fact, some streaming 

services include local broadcast 

programming as part of their linear 

channel offerings. While broadcasters 

assert that they compete with a myriad 

of sources that now provide video 

programming, competition from other 

video programming sources appears to 

be mostly focused on advertising 

revenue, which is but one of the facets 

of competition among local broadcast 

television stations. In general, nonbroadcast sources of video programming 

do not compete with broadcasters for 

retransmission consent fees, network 

affiliations, or the provision of local 

programming, which continue to remain 

largely unique to broadcast television. 

Retransmission consent fees are unique 

to broadcast stations, and the broadcast 

content for which MVPDs pay 

retransmission consent fees has special 

appeal to television viewers in 

comparison to any other type of video 

content to the point where viewers do 

not consider any other video 

programming to be substitutes for such 

broadcast content. The largest national 

networks (ABC, CBS, Fox, and NBC) 

affiliate with broadcast stations for overthe-air delivery of their programming. 

Moreover, while broadcasters may be 

seen as participating in various markets 

or competing along various dimensions 

(including, among others, the sale of 

local or non-local advertising; the 

creation, acquisition, and provision of 

local, syndicated, or national 

programming; and the acquisition of onair talent), the provision of local 

programming remains a hallmark of 

broadcast television and an area where 

viewers directly benefit from 

competition among local broadcast 

television stations. 

76. We note that our market definition 

is also consistent with the Department 

of Justice’s (DOJ’s) approach, which 

considers local broadcast television to 

be its own market in antitrust analysis. 

The Department of Justice examines 

local television broadcasters competing 

in the spot advertising market and 

competition for retransmission consent 

licensing fees in local television 

markets. DOJ has rejected the assertions 

of broadcasters that non-broadcast 

sources of video programming should be 

considered competitors to broadcast 

television in the context of analyzing 

transactions, focusing on the spot 

advertising product market in local 

television markets. Although DOJ’s 

analysis has focused historically on 

competition for advertising, whereas the 

Commission’s rule considers 

competition in a number of areas, 

including audience share, we find DOJ’s 

approach further supports, and is 

consistent with, our own. 

77. As we have concluded in previous 

quadrennial reviews, there are strong 

public interest reasons for promoting 

competition among local broadcast 

television stations. Promoting 

competition among local television 

stations prevents local broadcasters 

from demanding higher retransmission 

consent fees and charging higher rates 

for local businesses seeking to purchase 

advertising time on local stations, costs 

that may be passed on to consumers. 

Moreover, competition spurs quality 

improvements by broadcast television 

stations that benefit consumers, 

including through reinvestment in 

stations, expanded programming 

choices, and technological innovation. 

78. Spurring competition among 

broadcast television stations also 

promotes localism, as licensees seek to 

differentiate themselves while fulfilling 

their obligation to air programming 

responsive to the needs and interests of 

their local communities. For many 

stations, that includes local news and 

information programming. In contrast to 

other sources of video programming, 

broadcast stations are particularly well 

situated to cover local news, as stations 

are licensed to local communities to 

facilitate locally responsive content and 

information. Indeed, the record contains 

numerous assertions from broadcasters 

that the local programming they provide 

is unique and unduplicated by any 

other video programming provider. The 

Leadership Conference on Civil and 

Human Rights (LCCHR) states that 77% 

of Americans get most of their local 

news from broadcast sources, while 

only 23% get local news from online 

only sources, little of which is actually 

created by online outlets since much of 

the news consumed online are uploaded 

videos of television broadcast news. 

79. Although much local news is 

undoubtedly cost intensive to produce, 

we reject the broadcasters’ assertions 

that in order to preserve localism we 

must allow greater consolidation than is 

permitted under our current rule. As an 

initial matter, there is evidence that 

despite some declines in audience size 

over time, there remains significant 

demand for local television news, and 

the amount of local news on television 

has increased over time. Moreover, 

contrary to claims that absent 

consolidation television stations cannot 

continue to produce local news, Nielsen 

data shows that the number of stations 

airing local news actually increased 

slightly in a four year period from 2017 

to 2021. Nielsen Local TV View shows 

there were 976 stations airing at least 

one verified local news program in 

November 2017 and 992 such stations in 

November 2021. Also, Nielsen data 

demonstrates that while almost 20% of 

markets saw an increase in the number 

of stations airing local news, only 10% 

of markets saw a decrease and 70% of 

markets saw no change. The 

Commission examined Nielsen data in 

all available markets in November 2017 

and November 2021 to identify any 

station that aired at least one program 

categorized as local news by Nielsen 

and then used program titles to verify 

that programming was correctly 

classified as local news. Notably, only 

the top 50 markets saw more decreases 

than increases in the number of stations 

airing local news. According to Nielsen 

data, all of the top 50 markets have at 

least four broadcast stations airing local 

news, and the overwhelming majority of 

these markets have at least six stations 

airing local news. In markets ranked 51 

and lower, where broadcasters argue the 

need to consolidate is particularly acute, 

the number of markets that saw 

increases in stations airing local news 

outnumbered those that saw decreases. 

Further, studies by the Radio Television 

Digital News Association (RTDNA) 

found that the number of stations 

originating local news (i.e., the number 

of stations producing local news) 

increased slightly from 2017 to 2021. 

These studies found that 703 stations 

originated local news in 2017 and 707 

stations originated local news in 2021. 


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Just as the record does not demonstrate 

that consolidation, as opposed to 

competition to meet audience demand, 

is what drove increases in local news 

over time, we similarly cannot conclude 

that additional consolidation is 

necessary to preserve these gains, much 

less to preserve the ability of stations to 

produce local programming at all or to 

otherwise serve their local communities 

as required as licensees. 

80. Regarding the Market Size and 

Television News study conducted by 

OEA that concluded small and midsized markets are unlikely to support 

four independent local news operations, 

we note that the study itself mentions 

that it examines but one dimension to 

consider when determining the 

desirability of consolidation. In the 

authors’ preferred specification, only 

markets with more than 615,000 TV 

households were predicted to support at 

least four independent local news 

operations. We carefully reviewed other 

studies submitted in the record to show 

that consolidation improves local news 

coverage or makes production of local 

programming feasible. We also note the 

report of Professor Thomas Hubbard 

whose analysis shows that local news is 

not declining and has actually 

increased. Although there appears to be 

agreement that the amount of local news 

has increased, there remains 

disagreement on whether this growth is 

due to consolidation or part of an 

industry-wide trend to increase local 

news. We also note disagreement 

regarding the role of scale economies in 

the provision of local news relative to 

the increasing practice of contracting 

and sharing local news between 

stations. Finally, we note disagreement 

around what constitutes local news. We 

found the empirical studies and 

arguments helpful to our deliberations 

and decisions. We also note that the 

Local Television Ownership Rule has 

never been designed to ensure, and does 

not prescribe markets should or must 

have, at least four independent news 

operations. Rather, as discussed below, 

the rule helps ensure a level of 

viewpoint diversity so that there is an 

opportunity for as many independent 

news operations as a market can 

support, even if some markets have less 

independent local news operations and 

some have more, as they always have. 

In markets where there may be fewer 

independent news operations already, 

greater consolidation would not create 

new independent news operations and 

would only decrease the diversity of 

voices in the providers of local news. 

81. We also find that the rule remains 

important for helping to ensure 

viewpoint diversity in a local market. 

While the Local Television Ownership 

Rule remains first and foremost 

competition-focused, our policy goals 

are not unrelated or mutually exclusive, 

and the rule continues to promote 

viewpoint diversity as well. We 

continue to find that the competitionbased rule helps to ensure the presence 

of a number of independently owned 

broadcast television stations in the local 

market, thereby indirectly increasing the 

likelihood of a variety of viewpoints 

(including a variety of viewpoints 

within local programming) and 

preserving ownership opportunities for 

new entrants. Numerous commenters 

agree and state that the rule remains 

necessary to promote viewpoint 

diversity. We recognize, as NAB points 

out, that the Commission concluded in 

a prior Quadrennial Review that the rule 

was not necessary to promote viewpoint 

diversity due to the presence of ‘‘other 

types of media, such as radio, 

newspapers, cable, and the internet 

[that] contribute to viewpoint diversity 

in local markets.’’ Although it remains 

true that there are various types of 

media available to consumers within 

local markets, we reject the 

Commission’s prior conclusion that the 

rule is not necessary to promote 

viewpoint diversity. As we have 

described herein, the provision of local 

programming remains a defining 

characteristic of television stations, one 

that has grown, even as other sources of 

local content have disappeared or have 

repurposed local television content for 

their own platforms. Moreover, as we 

have reiterated, our rule serves to 

maintain diffuse ownership of this key 

platform—a local television station— 

among a wide variety of owners and 

types of owners, thereby promoting the 

interest in a multiplicity of speakers, 

particularly with respect to local issues 

and the needs and interests of local 

communities. 

82. Numerical Limit. We find that 

permitting ownership of up to two 

stations in a local market continues to 

strike the appropriate competitive 

balance of enabling some efficiencies of 

common ownership while maintaining a 

level of competition amongst broadcast 

television stations to ensure that they 

continue to serve the public interest. No 

commenter argues that the numerical 

limit should be tightened to permit 

ownership of only one station in a 

market. Indeed, we recognize that 

common ownership subject to the 

restrictions of the current rule can create 

operating efficiencies, which potentially 

could lead to public interest benefits if 

a local broadcast station chooses to 

invest more resources in programming 

that meets the needs of its local 

community as a result of those 

efficiencies. However, such efficiencies 

come at the expense of reducing 

competition and diversity and must be 

balanced accordingly. 

83. Given our determination of the 

relevant market, above, we do not find 

that the current state of the local 

television marketplace justifies 

ownership of a third in-market station. 

Broadcast commenters suggest that 

permitting ownership of a third, or 

additional, in-market station would 

enable broadcasters to compete more 

effectively, especially in large markets 

with a large number of full-power 

commercial stations. We do not find 

adequate support, however, for the 

notion that allowing ownership of a 

third station would generate public 

interest benefits outweighing potential 

public interest harms. The hypotheticals 

cited by commenters do not state why 

adding a third low-ranked station would 

grant a combination of two other lower 

ranked stations efficiencies and benefits 

above and beyond what a combination 

of two stations could achieve. While 

greater consolidation may lead to more 

operating efficiencies for the commonly 

owned stations, such consolidation also 

would mean the loss of an independent 

station operator, to the detriment of 

competition, localism, and viewpoint 

diversity. We find that any such 

marginal additional efficiency fails to 

outweigh the countervailing harms to 

these public interest goals. Excessive 

consolidation from a lack of ownership 

restrictions threatens the Commission’s 

competition and diversity goals by 

jeopardizing the continued existence 

and operations of small and mid-sized 

broadcasters that may be bought out by 

larger competitors instead of, as 

broadcast commenters suggest, enabling 

them to combine to become more 

effective competitors to the larger 

stations. 

84. Based on Nielsen viewership data 

over the period May 2021 to April 2022 

and advertising revenue data for 2021 

from BIA Kelsey Media Access Pro, the 

majority of television markets are 

already highly concentrated according 

to the 2010 Horizontal Merger 

Guidelines. The guidelines classify 

market concentration using HHI. The 

Commission examined Nielsen 

viewership data over the period May 

2021 to April 2022 to compute the 

viewership HHIs. The Commission 

examined ad revenue data for 2021 from 

BIA Kelsey Media Access Pro to 

compute the advertising revenue HHIs. 

Even taking into account viewership of 

all noncommercial full-power 

television, Class A, and LPTV stations 


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and any associated multicast streams in 

addition to all full-power commercial 

television stations, 147 of the 210 local 

television markets have viewership 

HHIs of greater than 2,500, meaning 

they are highly concentrated. Likewise, 

factoring in advertising revenue from all 

commercial full-power television, Class 

A, and LPTV stations and any 

associated multicast streams, 166 

markets have advertising revenue HHIs 

of greater than 2,500. Given the current 

levels of concentration in television 

markets, we find no grounds to loosen 

the existing numerical limits. 

85. Top-Four Prohibition. We retain 

the general prohibition on common 

ownership of two stations ranked in the 

top four of audience share in a market, 

along with the ability to allow such 

combinations on a case-by-case basis. At 

the same time, however, given changes 

in broadcast industry practice, we 

update our methodology used to 

implement this part of our rule. 

Specifically, we update the audience 

share metric used to determine a 

station’s in-market ranking and clarify 

that ratings data should be averaged 

over the 12-month period preceding a 

transaction. Additionally, we 

incorporate the ratings of a station’s 

multicast streams, to the extent such 

streams have measurable ratings, to 

reflect a station’s total audience share 

more accurately. 

86. Consistent with the Commission’s 

prior decisions, we continue to find that 

a combination involving two of the topfour stations in a market would be the 

most detrimental to competition, and 

thus the public interest. We continue to 

find that top-four combinations would 

often result in a single entity obtaining 

a significantly larger market share than 

other entities in the market and that 

such combinations could create welfare 

harms such as reduced incentives for 

local stations to improve their 

programming, as allowing former rivals 

to combine would reduce incentives to 

compete vigorously against one another. 

Notably, there are still four major 

broadcast networks (ABC, CBS, NBC, 

and Fox), and the programming from 

these networks continues to be the most 

highly rated. These top-four broadcast 

television networks continue to have a 

distinctive ability to attract large 

primetime audiences on a regular basis, 

and generally the top-four stations in 

any market are affiliated with these 

highly-viewed networks. Accordingly, 

we continue to find that the ability to 

attract mass audiences distinguishes the 

top ranked stations in local television 

markets so that owning two such 

stations in a market should be 

prohibited. We find further that top-four 

ranked stations are also still the most 

likely stations to originate local news. 

Accordingly, prohibiting top-four 

combinations helps ensure a diversity of 

voices among those stations providing 

such coverage of local issues. We note 

that, in the past, the Commission has 

cited the typical gap in ratings between 

the fourth and fifth ranked stations in a 

market as supporting the Top-Four 

Prohibition. To the extent there are 

situations where, for instance, a large 

gap in ratings occurs between the third 

and fourth ranked stations in a market 

(rather than between the fourth and fifth 

ranked stations), the fact remains that 

there is substantial concentration of 

audience share among the top-ranked 

stations in most markets and such 

situations may be indicative of the 

largest stations in a market exploiting 

loopholes in our rule (which we address 

today) to increase their market shares. 

For instance, our rule was historically 

premised on the notion that four full 

power stations in a market 

corresponded with four Big Four 

network affiliates. However, as 

discussed below, there are now 

numerous examples where entities have 

moved programming from what had 

been top-four rated stations (including 

Big Four network affiliates) to low 

power stations or multicast streams, 

such that what had been top-four rated 

station programming now may be 

aggregated on fewer than four full power 

stations (or among fewer than four 

separate owners) in a market. 

Accordingly, even if, say, the top three 

full power stations, rather than the top 

four full power stations, may dominate 

audience share in some markets, it 

certainly does not follow that one of 

those three stations categorically should 

be permitted to acquire the fourth 

ranked station and increase its market 

share even more. Rather than 

eliminating the Top-Four Prohibition, 

we find that the flexibility of the caseby-case approach to consider 

combinations of top-four rated stations 

is better suited to address broadcasters’ 

concerns about the viability of stations 

in smaller markets or situations in 

which there may no longer be a clearcut distinction between the top-four 

rated stations and the rest of the stations 

in a market. 

87. We note that the Top-Four 

Prohibition’s case-by-case approach 

serves an important purpose by 

affording flexibility to the Commission 

and licensees to consider combinations 

of highly ranked stations in unique 

circumstances. And we are not 

persuaded by the sweeping claims that 

for the broadcast television industry to 

remain viable, broadcasters must be 

given greater opportunities to 

consolidate without reference to such 

circumstances. Nor do such claims 

change our conclusion about the actual 

objective of the quadrennial review, 

which is to review our rules to ensure 

that they remain necessary in the public 

interest as a result of competition to 

promote the Commission’s public 

interest goals of competition, localism, 

and diversity. As the record 

demonstrates, broadcast television 

stations have multiple streams of 

revenue that support them. One stream, 

advertising revenue, has remained fairly 

steady in recent years, even while, 

broadcasters assert, they have lost 

advertising dollars to other sources of 

video programming. According to a Pew 

Research Center analysis of MEDIA 

Access Pro & BIA Advisory Services 

data, local television over-the-air 

advertising revenue follows a cyclical 

pattern that sees significant increases 

from political advertising during evennumbered elections years. By contrast, 

other industries besides broadcast 

television (e.g., print advertising, 

newspaper classifieds, and direct-mail 

advertising) have seen precipitous and 

lasting declines in advertising revenue 

concomitant with the growth of online 

advertising. In light of this, it is possible 

that online advertising is not siphoning 

advertising dollars only, or even 

primarily, away from broadcast sources. 

Stations increasingly are also generating 

revenue from digital advertising and the 

distribution of their programming on 

digital platforms. Most importantly, as 

discussed above, many broadcast 

television stations also receive per 

subscriber fees from video programming 

distributors in exchange for 

retransmitting their broadcast 

programming. Retransmission consent 

fees remain a significant source of 

station revenue and one that, at least for 

now, is expected to continue growing. 

Ultimately, we find assertions regarding 

the future of retransmission consent fees 

to be speculative and that 

retransmission consent fee revenue 

continues to grow, in spite of 

predictions that they may flatten out or 

decrease at some point in the future. We 

note further that technological 

developments in broadcast television 

could create opportunities for other 

revenue sources from new digital 

services ancillary to ATSC 3.0. ATSC 

3.0 is a television transmission standard 

currently being developed by 

broadcasters with the intent of merging 

the capabilities of over-the-air 

broadcasting with the internet’s 

broadband viewing and information 


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delivery methods while using the same 

6 MHz channels presently allocated for 

digital television. 

88. We find that on the whole, the 

record does not demonstrate an 

imminent threat to the viability of 

broadcast television at this time that 

would either warrant, or, more 

importantly, be remedied by loosening 

or eliminating the Top-Four Prohibition. 

Broadcast commenters argue for the 

Top-Four Prohibition to be repealed 

because they claim it prevents 

consolidation that is crucial for 

broadcasters to continue serving the 

public interest. Conversely, ATVA and 

NCTA assert that the rule must be 

retained to protect consumers from 

rising costs due to pass through of 

retransmission consent fee increases 

that result when broadcasters are able to 

negotiate retransmission consent fees for 

two top-four stations jointly in a market. 

Even if we were to accept broadcasters’ 

arguments that certain broadcast 

television stations in certain markets 

(e.g., smaller markets) are struggling to 

produce local programming due to an 

inherently limited revenue base and 

may benefit from consolidation, such a 

finding would not support relaxing the 

local television rule in all markets. 

Broadcasters would have us eliminate 

all ownership restrictions in all markets 

to enable consolidation that may only be 

of some benefit to certain stations in 

certain markets. Some commenters 

support relaxation of the rules only for 

smaller markets. As discussed below, 

we find that the local television rule’s 

case-by-case approach allows for the 

Commission to address the challenges 

faced by small and other uniquely 

situated markets. The case-by-case 

flexibility contained in the current rule 

is intended to account for the practical 

challenges some stations may face. 

89. We find that the case-by-case 

approach has allowed the Commission 

to maintain the proper balance between 

ensuring that no market is excessively 

concentrated and allowing flexibility in 

particular circumstances. Although 

some commenters state that the case-bycase approach offers inadequate relief 

because of the lack of any defined 

criteria for granting relief, the 

Commission previously offered several 

examples of information that could help 

establish whether application of the 

Top-Four Prohibition would be in the 

public interest, such as (1) ratings share 

data of the stations proposed to be 

combined compared with other stations 

in the market; (2) revenue share data of 

the stations proposed to be combined 

compared with other stations in the 

market, including advertising (on-air 

and digital) and retransmission consent 

fees; (3) market characteristics including 

population and the number and types of 

broadcast television stations serving the 

market (including any strong 

competitors outside the top-four rated 

broadcast television stations); (4) the 

likely effects on programming meeting 

the needs and interests of the 

community; and (5) any other 

circumstances impacting the market, 

particularly any disparities primarily 

impacting small and mid-sized markets. 

Variations in local markets and specific 

transactions make it impractical to 

provide an exhaustive set of criteria for 

the case-by-case analysis, but we will 

continue to monitor transactions and 

the marketplace in the course of further 

reviews and identity additional factors 

as it is useful to do so. Moreover, we 

note that pursuant to the previously 

articulated factors and even in the 

absence of rigid criteria, the 

Commission granted three case-by-case 

requests for flexibility affecting five 

DMAs before the provision was 

temporarily vacated and subsequently 

restored by the courts, demonstrating 

the utility of the case-by-case approach 

under appropriate circumstances. 

90. We decline to adopt presumptions 

in favor of top-four combinations at this 

time and based on the current record as 

recommended by some commenters. 

Gray suggests that the Commission 

should adopt presumptions in favor of 

top-four combinations where an entity 

commits to improving local news. 

Although the Commission has 

considered additional local 

programming to be a factor in previous 

requests, we find that creating a 

presumption in all such requests may 

detract from examining the unique 

circumstances of a market, such as the 

level of local programming already 

present or the relative strength of the 

stations in the market, as intended by 

the case-by-case approach. Also, ION 

Media argues that top-four combinations 

should be presumed to comply with the 

rules, and the burden should be on 

opponents of a proposed top-four 

combination to show that it would 

violate the Commission’s policies. We 

do not find that there is adequate record 

support for changing the Commission’s 

previous conclusion regarding the 

anticompetitive nature, in general, of 

combinations of top-four ranked stations 

in the same market. As the Commission 

has stated, we find that most 

combinations of top-four ranked stations 

would result in a single entity obtaining 

a significantly larger market share than 

others in the market and that such 

combinations would create public 

interest harms. Furthermore, the impact 

of top-four station combinations could 

vary greatly depending on factors such 

as the relative strength of the stations in 

the market, which would weigh against 

creating a presumption based on other 

factors. Therefore, we find it preferable 

to allow for exceptions to the 

prohibition rather than to presume such 

combinations should be allowed. 

91. Finally, we adopt two 

modifications to elements of the TopFour Prohibition to better reflect current 

broadcast industry practices. While 

commenters for the most part either 

support retaining the Top-Four rule asis or repealing it completely, we find 

that it is appropriate to update the 

methodology used to determine whether 

a station is ranked among the top-four 

stations in a Nielsen DMA to comport 

with current market realities. We retain 

the language in the rule that allows for 

consideration of other comparable 

audience measuring services in addition 

to Nielsen to keep flexibility in the rule. 

The first modification updates the 

audience share metric used to determine 

a station’s in-market ranking and 

specifies that ratings data must be 

averaged over a 12-month period 

preceding any transaction. The second 

modification clarifies that, because the 

rule only references ‘‘stations,’’ the 

ratings of multicast streams will be 

aggregated with the ratings of all nonsimulcast programming airing on 

streams owned, operated, or controlled 

by the same station, provided that such 

streams have measurable ratings 

reported by an audience measuring 

service and are not the simulcast stream 

of another in-market station. 

92. First, we modify the provision in 

the current rule that determines market 

ranking to use the Sunday to Saturday, 

7AM to 1AM daypart in order to reflect 

more accurately a station’s performance 

in terms of audience share. In addition, 

we delegate to the Media Bureau the 

authority to update the relevant FCC 

forms to conform with the changes we 

adopt today. Previously, the rule 

determined market ranking ‘‘based on 

the most recent all-day (9 a.m.– 

midnight) audience share, as measured 

by Nielsen Media Research or by any 

comparable professional, accepted 

audience ratings service.’’ The NPRM 

sought comment on whether this data 

point is still the most useful for 

accurately determining a station’s 

ranking for purposes of the Top-Four 

Prohibition. As Gray and Nielsen 

indicate, that daypart, which is also 

used for evaluating failing station 

waiver requests, does not accurately 

reflect a station’s full performance in 

light of programming changes over the 

years, including the addition of early 


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morning programming. In particular, we 

expect that expanding the daypart will 

capture more local news, an important 

part of a station’s programming and a 

driver of viewership that stations have 

begun airing earlier in the day than in 

the past. Moreover, using the 7AM to 

1AM daypart, as opposed to a 24-hour 

reporting period, avoids ‘‘minor 

fluctuations’’ in ratings during 

nighttime hours when some stations 

may not transmit video programming. 

Lastly, given that the existing 9AM to 

midnight daypart is also used for 

determining audience share for 

purposes of evaluating failing station 

waiver requests, we find that using the 

new 7AM to 1AM daypart in the failing 

station waiver context going forward 

makes sense logically for the same 

reasons discussed above and to 

maintain consistency in the 

Commission’s methods. We find that 

making this change is the logical 

outgrowth of updating the Top-Four 

Prohibition since the use of audience 

measurements in both contexts serves 

the same purpose in allowing the 

Commission to evaluate a station’s 

performance in its local market, and the 

same measurement has historically been 

used for both. 

93. We also specify that, for purposes 

of determining a station’s in-market 

ranking under the Local Television 

Ownership Rule, the rule will require 

submission of ratings averaged from 

available data over a 12-month period 

immediately preceding the date of 

application rather than an average over 

a shorter ratings period or a snapshot of 

a single such data point (i.e., ratings at 

the time an assignment of license or 

transfer of control application is filed 

with the Commission). Also, where the 

station or stations at issue have changed 

network affiliations within the 

preceding 12 months, the ratings should 

be averaged for the period since the 

affiliation change took place so as to 

most accurately reflect the ratings 

position of the station or stations at the 

time of application. While the NPRM 

sought comment on whether the 

Commission should clarify the phrase 

‘‘at the time the application to acquire 

or construct the station(s) is filed’’ with 

respect to the appropriate ratings data 

applicants submit for consideration, we 

received no comments responsive to 

this question. We note that ratings data 

have become available on a more 

frequent (and more frequently updated) 

basis than in the past and are now 

accessible for many different time 

periods. We find that replacement of the 

phrase ‘‘most recent’’ in favor of 

establishing a defined time period in 

this manner will enable a more 

complete understanding of the market 

and the competition among stations 

within it. Such information will in turn 

better inform the Commission and 

public as to whether a proposed 

transaction is in the public interest. In 

particular, such an approach will 

provide a more accurate assessment of 

a station’s true market position by 

minimizing the impact of seasonal or 

one-off monthly ratings anomalies 

(typically the result of sporting events or 

seasons) and also reduce opportunities 

for gamesmanship based on the lack of 

a clearly established timeframe in the 

rule’s language. For example, applicants 

would have less incentive to time a 

transaction or application filing to 

correspond with a period where a 

station experiences abnormally low 

ratings. Finally, the consideration of 

ratings averaged over a 12-month period 

will apply to all instances that involve 

determinations of whether stations are 

ranked in the top-four, including 

applications of Note 11 to section 

73.3555 and its extension as described 

below. 

94. Second, going forward we will 

aggregate the audience share of all freeto-consumer non-simulcast multicast 

programming airing on streams owned, 

operated, or controlled by a single 

station to determine the station’s 

audience share and ranking in a market 

(to the extent that such streams are 

ranked by Nielsen or a comparable 

professional, accepted audience ratings 

service). The NPRM sought comment on 

whether and how the Commission 

should evaluate multicast streams for 

purposes of the Local Television 

Ownership Rule. The existing rule does 

not specify that it includes multicast 

streams, but we find that ignoring such 

streams when evaluating a station’s inmarket audience share is no longer 

appropriate given the proliferation of 

such programming and the industry 

trend toward carriage of major network 

affiliate programming on such streams. 

To the extent that a nonprimary 

multicast stream has measurable 

audience ratings, not accounting for 

such ratings when evaluating a station’s 

performance would seem to ignore a 

potentially significant portion of the 

station’s service and competitive 

strength within the market. Some 

multicast streams have ratings reported 

by audience ratings services while 

others do not. We find that, to the extent 

Nielsen or a comparable professional, 

accepted audience ratings service 

reports ratings for a multicast stream, 

such a stream is significant enough to be 

included in its station’s audience ratings 

measurement. The use of multicasting 

has grown in prevalence over the years 

and is expected to continue to grow as 

a way for broadcasters to expand their 

offerings and distribution. Although 

accounting for nonprimary multicast 

streams may not have affected a 

station’s ratings significantly in the past, 

such streams may have an impact on 

ratings now and in the future, and thus 

including them in ratings should 

provide a better indicator of the 

competitive strength and health of a 

station than simply focusing on a single 

stream. As noted, some stations are even 

placing programming affiliated with 

major broadcast networks on 

nonprimary multicast streams, making it 

all the more important to consider in 

our analysis when possible. 

95. We limit aggregation to free-toconsumer programming airing on 

streams owned, operated, or controlled 

by a station because stations make such 

streams available to consumers over the 

air as part of their broadcast signal. We 

also do not count simulcast streams 

airing the programming of another 

station, because, based on Commission 

experience, the ratings for such streams 

typically are measured by audience 

ratings services as part of the ratings for 

their originating stations. Accordingly, 

because the multicast stream’s ratings 

are not separately reported, we do not 

aggregate the programming’s ratings in 

order to avoid double counting ratings 

already attributed to another station. In 

other words, if a station utilizes one of 

its nonprimary multicast streams to 

simulcast the primary programming 

stream of another station, the ratings of 

that simulcast stream will not be 

aggregated in determining the overall 

ratings of the station. Through these 

limitations, we find that aggregation 

will capture a station’s true ratings by 

focusing on programming originating 

from that station and broadcast in the 

same manner as traditional television 

signals. 

96. Similarly, we are aware that some 

broadcast stations may be hosting 

programming of other stations on a 

temporary basis during the transition to 

ATSC 3.0. We clarify that only the 

ratings of programming owned or 

controlled by a station and airing on the 

station’s multicast streams will be 

aggregated. Consistent with the way 

such streams are licensed, we do not 

find that hosting the ATSC 1.0 signal of 

another station for purposes of the 

transition amounts to operating the 

signal’s programming. In other words, if 

Station A is hosting Station B’s ATSC 

1.0 signal on one of its multicast 

streams, Station B’s ATSC 1.0 ratings 

will not be aggregated with Station A’s 


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multicast streams (which are airing 

programming belonging to Station A). 

Rather, Station B’s ATSC 1.0 ratings will 

be aggregated with those of Station B’s 

streams depending on how audience 

ratings services choose to incorporate 

ATSC 1.0 and 3.0 ratings into their 

measurements. 

97. Anti-Circumvention Measures. 

Note 11 to section 73.3555 of the 

Commission’s rules prohibits certain 

types of acquisitions of a network 

affiliation by one station from another 

station in the same market that the 

Commission has found to be the 

functional equivalent of an assignment 

or transfer of control from the 

standpoint of our Local Television 

Ownership Rule. For example, since the 

last quadrennial review, the 

Commission has taken action against 

certain affiliation acquisitions that 

violate Note 11. Today we take further 

action to expand the measure contained 

in Note 11 to prevent other means of 

circumventing the Top-Four 

Prohibition. In response to the NPRM’s 

questions about entities placing major 

network affiliations on multicast 

streams and LPTV stations, parties have 

raised in the record, and the 

Commission has observed itself, that 

some station owners appear to be 

circumventing the prohibition on 

network affiliation acquisitions—and 

hence the Top-Four Prohibition—by 

acquiring the network-affiliated 

programming of another top-four full 

power station in the DMA, either alone 

or in conjunction with other tangible 

and non-tangible assets and then 

placing that programming on the 

multicast stream of an existing full 

power station or on an LPTV station in 

the same DMA, neither of which is 

counted for purposes of the Local 

Television Rule. Because we view such 

actions as undermining our Local 

Television Rule, we revise the language 

in Note 11 to extend the existing 

prohibition on certain network 

affiliation acquisitions to prohibit such 

behavior in the future and ensure the 

efficacy of our rule. 

98. We take this action to preserve the 

efficacy of the Top-Four Prohibition 

because we find it necessary to prevent 

further exploitation of unintended 

ambiguities or gaps in the rule. Such 

exploitation harms competition and 

denies consumers the benefits of 

competition. Therefore, we find that our 

actions are consistent with the statutory 

mandate of section 202(h) to modify a 

rule so that the rule continues to serve 

the public interest. 

99. The record demonstrates that 

there are two methods through which 

parties have been able to achieve results 

that are inconsistent with the policy 

objectives and intent of the Top-Four 

Prohibition rule’s Note 11 provision. 

Although different in certain respects, 

the two methods both avoid acquisition 

of another full-power station in the 

same local market and instead rely on 

use of broadcast facilities or 

transmissions that have not been subject 

to the ownership limitations placed on 

full-power facilities. For the sake of 

clarity, we employ hypothetical 

examples to illustrate the methods in 

operation. Accordingly, consider 

situations involving two independently 

owned, full-power stations among the 

top four stations (as measured by 

ratings) in the same local market. 

Station A is affiliated with Network 

YYY and Station B is affiliated with 

Network ZZZ. 

• Under the first scenario, the 

licensee of Station A acquires Station 

B’s Network ZZZ affiliation but, stymied 

by the ownership rules from also buying 

Station B outright, instead places the 

Network ZZZ affiliation on an LPTV 

station that the licensee of Station A 

already owns in the market. This action 

comports with the Commission’s 

regulations to date because LPTV 

stations have been exempt from the 

Local Television Ownership Rule’s 

restrictions. 

• Under the second scenario, the 

licensee of Station A still acquires 

Station B’s Network ZZZ affiliation but 

simply places it on one of Station A’s 

own digital multicast streams. This 

action also comports with the 

Commission’s regulations to date 

because the agency has not treated a 

licensee’s multiple programming 

streams on a single station (e.g., a 

primary and one or more multicast 

stream) to be the functional equivalent 

of operating two stations. 

100. However, the use of an LPTV 

station or multicast stream in these 

manners to air top-four rated 

programming acquired from an inmarket competitor results in the 

acquiring party’s obtaining the 

equivalent of a second top-four rated 

station in terms of audience and 

revenue share in the local market. In 

this manner, parties have obtained the 

programming and non-license assets of 

a competing, in-market full power 

television station, typically without the 

need or opportunity for any review by 

the Commission, as no broadcast station 

license is being transferred. Further, by 

acquiring the network affiliation and 

most valuable non-license assets from 

the former station, these machinations 

typically result in the removal of a 

commercial full power competitor from 

the market. Therefore, such actions are 

inconsistent with the Top-Four 

Prohibition because they allow 

excessive aggregation of viewers and 

revenue among top stations in the 

market, which harms competition and 

the competitive benefits that flow to 

consumers. 

101. While some broadcast 

commenters characterize the placing of 

major network (e.g., ABC, CBS, NBC, 

Fox) content on non-primary multicast 

streams and LPTVs as legitimate efforts 

to improve their stations’ programming 

and to increase the availability of 

quality programming in local markets, 

that does not always appear to be the 

case. Instead, rather than representing 

genuine attempts by stations to compete 

better through organic growth, such 

transactions often appear to be 

intentionally manufactured to skirt the 

prohibitions on excessive market 

concentration. Commenters have 

identified instances, and we are aware 

of others that, if not clearly intentional, 

at least appear to be deliberately 

exploiting these loopholes. For example, 

ATVA identifies six markets where 

Sinclair put a newly acquired network 

affiliation and programming on a 

multicast stream where the existing 

prohibitions would have prohibited 

Sinclair from putting the programming 

on separate full-power stations. ATVA 

also characterizes Gray’s use of LPTV 

and multicasting to cure an apparent 

Note 11 violation as a ‘‘form over 

substance’’ move since the end result is 

still the same accumulation of top-four 

affiliations and programming by one 

entity. 

102. We note that, in the past, placing 

major network affiliations on LPTV 

stations or multicast streams happened 

relatively rarely and often enabled 

broadcasters to bring such network 

programming to so-called ‘‘short 

markets,’’ that is markets that do not 

have enough full power commercial 

stations to accommodate all of the major 

networks on their own individual full 

power stations. Indeed, the Commission 

has considered previously the 

prevalence of dual Big-Four network 

affiliations on multicast streams and 

expressed its intent to monitor the issue. 

While in the past such situations were 

relatively limited, circumstances have 

changed. ATVA and NCTA state that 

such network affiliation arrangements 

and acquisitions are increasingly being 

used to circumvent the Top-Four 

Prohibition and its ban on using an 

agreement or series of agreements to 

effectuate an acquisition of another 

station’s programming (i.e., affiliation 

acquisitions or swaps) by enabling 

entities to acquire affiliations and nonlicense assets and placing them on 


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multicast streams or LPTV stations to 

avoid running afoul of the existing ban. 

ATVA identifies 121 instances of this 

perceived rule circumvention, 46 of 

which have occurred in true short 

markets as determined by ATVA. ATVA 

also notes that several such affiliation 

arrangements occur in the top 100 

Nielsen DMAs, further indicating that 

they are not limited to the smallest 

markets where the number of full power 

stations would be more limited. We 

agree with ATVA and NCTA that the 

number of instances where top-four 

rated programming appears on 

nonprimary multicast streams or low 

power stations now vastly outnumber 

the occurrence of actual ‘‘short markets’’ 

where there are an inadequate number 

of full power stations to host each major 

network on its own full power station. 

103. The Commission has 

encountered similar circumvention of 

the Top-Four Prohibition in the past and 

adopted Note 11 in response. However, 

because Note 11’s language concerns 

only stations within the meaning of the 

Local Television Ownership Rule (full 

power stations), the existing prohibition 

does not currently restrict the use of 

LPTV stations or multicast streams for 

the reasons discussed above. Therefore, 

we expand Note 11 by adding the 

following language in order to address 

some of the new affiliation acquisition 

practices described above: 

Further, an entity will not be permitted 

through the execution of any agreement (or 

series of agreements) to acquire a network 

affiliation, directly or indirectly, if the 

change in network affiliation would result in 

the affiliation programming being broadcast 

from a television facility that is not counted 

as a station toward the total number of 

stations an entity is permitted to own under 

paragraph (b) of this section (e.g., a low 

power television station, a Class A television 

station, etc.) or on any television station’s 

video programming stream that is not 

counted separately as a station toward the 

total number of stations an entity is 

permitted to own under paragraph (b) of this 

section (e.g., non-primary multicast streams) 

and where the change in affiliation would 

violate this Note were such television facility 

counted or such video programming stream 

counted separately as a station toward the 

total number of stations an entity is 

permitted to own for purposes of paragraph 

(b) of this section. 

104. With the above expansion of 

Note 11, the Commission going forward 

will not permit an entity to acquire the 

network affiliation of another in-market 

station and then place that affiliation on 

‘‘a television facility that is not counted 

as a station toward the total number of 

stations an entity is permitted to own 

under [the Local Television Ownership 

Rule contained in] paragraph (b) of 

[section 73.3555]’’ such as an LPTV 

station or any other class of television 

station exempted from the ownership 

rules, if the affiliation could not be 

placed on a station that is counted 

‘‘toward the total number of stations an 

entity is permitted to own for purposes 

of [the Local Television Ownership Rule 

contained in] paragraph (b) of [section 

73.3555],’’ namely, a full-power 

commercial station. The Commission 

also will not permit an entity to acquire 

the network affiliation of another inmarket station and then place that 

affiliation on ‘‘any television station’s 

video programming stream that is not 

counted separately as a station toward 

the total number of stations an entity is 

permitted to own under [the Local 

Television Ownership Rule contained 

in] paragraph (b) of [section 73.3555]’’ 

be it a .2, .3, or .4 multicast stream, if 

the affiliation could not be placed on a 

station that is counted ‘‘toward the total 

number of stations an entity is 

permitted to own for purposes of [the 

Local Television Ownership Rule 

contained in] paragraph (b) of [section 

73.3555].’’ This restriction applies to 

streams that an entity owns, operates, or 

controls even when those streams are 

being hosted by another station in 

which the entity has no cognizable 

interest. We believe these changes will 

suffice to resolve the loopholes 

identified above and to ensure the 

efficacy of the Top-Four Prohibition and 

the public interest benefits that flow 

therefrom. Our revision of Note 11 to 

prevent other means of circumventing 

the Top-Four Prohibition is not a 

content-based restriction on speech. The 

prohibition on affiliation acquisitions 

involving two top-four stations does not 

consider content but rather market 

concentration. As with Note 11 when 

adopted in the 2010/2014 Quadrennial 

Review Order, the extension adopted 

today will apply on a prospective basis. 

The extension will apply to all 

applications filed after the release date 

of this Order and transactions entered 

into after the release date of this Order. 

Where their actions have not otherwise 

violated current rules, parties that prior 

to the release of this Order had acquired 

the affiliation of a top-four rated 

television station and placed it on a 

multicast stream and/or a low power 

television station in a manner that 

would violate Note 11 as revised herein 

will not be subject to divestiture. All 

future transactions will be required to 

comply with the Commission’s rules 

then in effect. Such grandfathered 

arrangements will not be transferable or 

assignable. Instead, proposed sales 

involving such grandfathered station 

arrangements in existence as of this 

Order’s release date will be subject to 

Commission review upon application to 

transfer or assign the license or licenses 

of the station or stations involved. 

Consistent with prior applications of 

Note 11, entities may seek case-by-case 

examination of such proposed 

transactions and seek Commission 

approval to transfer or assign the 

grandfathered arrangement. Just as with 

pre-existing combinations of top-four 

stations that applicants seek to transfer 

intact, this approach will enable the 

Commission to weigh potential harms 

and benefits of permitting the 

arrangement to continue, including any 

unique circumstances of the market and 

potential effects related to service 

disruption to viewers. 

105. We find that our approach today 

closes loopholes to Note 11 and the 

Top-Four Prohibition while continuing 

to support legitimate uses of both LPTV 

and multicast streams. We note that our 

amendment to Note 11 narrowly targets 

actions by which broadcast stations 

effectively seek to circumvent 

application of the Top-Four Prohibition 

and the need for the Commission’s 

transaction review, actions that 

typically result in the elimination of an 

in-market competitor station. The rule 

change we adopt today does not inhibit 

organic growth, expansion, or changes 

in station programming, nor does it 

impact affiliation changes initiated by a 

network itself. For example, where a 

network, absent any undue direct or 

indirect influence from a broadcast 

entity, chooses to move its affiliation 

from one station to another in the 

market (perhaps because the network is 

no longer satisfied with the existing 

affiliate station and the other station has 

demonstrated superior operation and 

thus earned the affiliation on merit), 

such a change in affiliation is not a 

circumvention of Note 11. A broadcast 

commenter points out that the 

Commission declined to restrict 

instances where a station acquired a 

multicast affiliation with a major 

network through direct negotiations 

with the network rather than with the 

existing local affiliate. The Commission 

did state that Note 11 would not apply 

in situations where a network offers an 

existing duopoly owner a top-four-rated 

affiliation (perhaps because the network 

is no longer satisfied with the existing 

affiliate station and the duopoly owner 

has demonstrated superior station 

operation and thus earned the affiliation 

on merit) because such a circumstance 

represents organic growth of the station 

and not a transaction that is the 

functional equivalent of an assignment 


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or transfer of control from the 

standpoint of our Local Television 

Ownership Rule. In contrast, 

circumstances where a station induces 

an existing local affiliate to terminate its 

affiliation with its network so that the 

station can then affiliate with the same 

network clearly falls outside of the 

situation described by the Commission. 

106. In adopting this approach, we 

reject suggestions that the Commission 

should eliminate the exemption of 

LPTV stations for purposes of the TopFour Prohibition, except in markets 

without at least four full-power stations. 

That approach would effectively 

eliminate the existing provision in our 

rules exempting LPTV stations from the 

local television ownership restrictions. 

When the Commission adopted its rules 

exempting LPTV stations from the 

ownership restrictions, 47 FR 21468 

(May 18, 1982), it found that LPTVs 

were limited by their coverage, 

operation, and secondary status, and 

that such limitations weighed in favor of 

‘‘permitting experienced participants in 

the market to pioneer the low power 

service.’’ It found further that 

pioneering the creation of such low 

power service outweighed the 

Commission’s traditional concerns 

regarding multiple ownership. 

Accordingly, LPTV stations have never 

been subject to the Commission’s 

multiple ownership rules, nor seen as 

entirely equivalent to full power 

television stations. At this time, we do 

not find that the record supports 

completely abandoning this previous 

determination or fully extending the 

local television ownership restriction to 

LPTV. 

107. Similarly, we reject ATVA’s 

suggestion that the Commission prevent 

a station in a market with four or more 

full-power or LPTV stations from 

multicasting two or more streams of topfour network affiliated programming. As 

the Commission has found in the past, 

a significant benefit of the multicast 

capability is the ability to bring more 

local network affiliates to smaller 

markets, thereby increasing access to 

popular network programming and local 

news and public interest programming 

tailored to the specific needs and 

interests of the local community, and 

we do not wish to constrain this ability 

unnecessarily. However, the record does 

contain indications that some entities 

currently may be using the fact that 

multicast streams and LPTV stations are 

exempt from the ownership rules to 

circumvent the Commission’s local 

television ownership restrictions, 

indications that are corroborated by the 

Commission’s own aforementioned 

experience. Such circumvention runs 

directly against the intended purpose of 

exempting LPTV and multicast streams, 

which was expected to benefit 

competition in the form of new 

programming alternatives and 

increasing the availability of network 

programming respectively. In adopting 

the LPTV exemption, the Commission 

believed that excluding LPTV from 

ownership restrictions would ‘‘foster a 

low power service that can grow to 

provide program alternatives to full 

service stations and cable systems in a 

manner that increases competition in 

the marketplace and thus enhances the 

telecommunications service available to 

the public.’’ Therefore, although we do 

not change the Top-Four Prohibition’s 

methodology with respect to LPTV and 

multicast streams in general, we 

nevertheless find our action today 

appropriate to address when entities 

seek to exploit the exemption in ways 

that circumvent our rules and result in 

market concentration, considering both 

the exemptions’ original pro-public 

interest purposes and the clear intent of 

the Top-Four prohibition. 

108. We recognize that in the future 

licensees may devise other ways to read 

our rules narrowly or to manufacture 

transactions that circumvent the 

intended purpose of the Top-Four 

Prohibition. At this time, the 

Commission will not prohibit conduct 

other than that which we have observed 

to be circumventing the purpose of 

established rules, as there remain 

compelling reasons for low power and 

satellite television stations to remain 

transferable and otherwise exempt from 

our ownership rules. Although the 

NPRM sought comment on satellite 

stations as another type of television 

station exempted from ownership 

restrictions through which an entity 

could air multiple major networkaffiliated programming, the record does 

not indicate that satellite stations are 

being misused in such a way. In any 

case, the language of the modification to 

Note 11 includes any station that is not 

counted for purposes of the local 

ownership restriction and is not limited 

to LPTV or multicast streams as the only 

possible methods for circumvention. 

However, we stress that this should not 

be interpreted as an invitation for 

licensees to invent creative ways to 

circumvent the clear intent of our 

ownership rules, and the Commission 

stands ready to take further action as 

necessary. Finally, we note that if an 

entity believes the Top-Four Prohibition 

and Note 11 should not apply to its plan 

to place on a low power station or 

multicast stream an affiliation or 

affiliated programming acquired from 

another top-four station in the same 

market, the entity may seek case-by-case 

consideration under the Local 

Television Ownership Rule. Put another 

way, just as entities may seek case-bycase review of a top-four combination 

that would otherwise violate the Top 

Four Prohibition, entities may also seek 

case-by-case consideration of an 

affiliation acquisition that we would 

consider effectively equivalent to a topfour acquisition and that would 

otherwise violate Note 11 of our rule. In 

small markets, the Commission may 

look favorably upon a request for 

consideration where, if Note 11 were to 

be applied, the result would be fewer 

programming streams in the market than 

there were before (e.g., an assignment or 

transfer of control of a grandfathered 

combination where coming into 

compliance with Note 11 would result 

in the loss of an existing top four stream 

from the market). 

109. Broadcast Spectrum Auction and 

Next Generation Broadcast Television 

Transmission Standard. We conclude 

that neither the television broadcast 

incentive auction, conducted in 2016, 

nor the related repack of the television 

spectrum, concluded in late 2020, had 

any significant effects on local 

television ownership or implications for 

retention or modification of the Local 

Television Ownership Rule. Nor do we 

find that the adoption and deployment 

of the new broadcast television 

transmission standard should have any 

effect on the Local Television 

Ownership Rule. 

110. First, we find that the auction 

and resulting repack did not 

significantly affect the ownership ranks 

or our consideration of the ownership 

rules. As we noted in the Public Notice 

seeking to update the record of this 

proceeding, only 41 television stations 

permanently discontinued operations as 

a result of the auction. All other stations 

involved in the auctions are still 

available to their viewers because they 

chose to implement channel sharing 

arrangements or moved from the UHF to 

the VHF band. The 41 television 

stations that surrendered their licenses 

represented less than 2% of the 2,148 

full power and Class A stations that 

existed at the time. Furthermore, only 

19 of the 41 stations that surrendered 

their licenses and terminated service 

were full power commercial stations, 

which represents a reduction of 1.38% 

of the 1,373 full power commercial 

stations counted in the most recent 

broadcast station totals. In sum, we find 

the impact of the incentive auction and 

resulting repack of the television 

spectrum on ownership to be negligible. 


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111. Second, the record does not 

indicate that the broadcasters’ voluntary 

transition to the ATSC 3.0 transmission 

standard has any immediate or direct 

implication for the ownership rules. 

Although we noted above that new 

digital services ancillary to ATSC 3.0 

could create revenue opportunities for 

broadcast stations that belie a bleak 

outlook of the broadcast industry, we do 

not find that the benefits of ATSC 3.0 

have been actualized to the point where 

we could draw any more direct 

implications until the new transmission 

standard becomes more widely 

deployed. There is no evidence in the 

record that use of 3.0 allows anyone to 

own more or less stations, creates any 

loopholes to our rules, or affects any of 

the conclusions underlying our actions 

in this proceeding. We will continue to 

monitor any innovations and 

developments that could affect 

television industry practices or 

otherwise call into question the 

premises under which the ownership 

restrictions were adopted. 

112. Shared Service Agreements. We 

conclude that the SSA disclosure 

requirement should be retained to 

maintain transparency as to the extent 

of common operation between broadcast 

stations. We agree with the only 

commenter who mentions the SSA 

disclosure requirement in the record, 

who contends that the rule should be 

retained because SSA disclosure 

facilitates the Commission’s analysis of 

the broadcast industry and allows the 

public to analyze ownership diversity in 

the industry, recognizing that 

consolidation of operations could limit 

competition and diversity. 

113. No commenter provides a reason 

for eliminating this requirement, and so 

in the interest of maintaining 

transparency, we conclude that the 

disclosure of SSAs should continue. As 

when the Commission adopted the SSA 

disclosure requirement six years ago, we 

find that the requirement continues to 

be useful for the public and the 

Commission to monitor the content, 

scope, and prevalence of SSAs, as well 

as to evaluate the impact of these 

agreements on the Commission’s public 

interest policy goals. Despite calls from 

some commenters for greater oversight 

or action by the Commission, we note 

that the NPRM in this proceeding did 

not seek comment on attributing SSAs, 

Joint Sales Agreements, or any other 

contractual relationships between 

stations in the same market, and we 

therefore do not have an adequate 

record to take further action in this 

order with respect to such agreements. 

The Commission eliminated attribution 

for television JSAs and did not seek 

comments on reestablishing attribution 

in the NPRM. Several commenters 

nevertheless call on the Commission to 

attribute sharing arrangements, which 

they perceive as a loophole to the 

ownership restrictions. 

114. Minority and Female Ownership. 

We find that retaining the existing 

ownership limits continues to preserve 

opportunities for ownership diversity, 

including minority and female 

ownership. As in past quadrennial 

reviews, we retain the existing Local 

Television Ownership Rule for the 

reasons stated above, primarily to 

promote competition among broadcast 

television stations in local markets. 

Nevertheless, we also find that retaining 

the existing rule can promote 

opportunities for diversity in local 

television ownership. Broadcast 

commenters state that the best way to 

encourage broadcast ownership by new 

entrants, including minority and female 

owners, is to ensure access to capital by 

removing rules that impede investment 

and by incentivizing existing broadcast 

owners to provide capital to new 

entrants. As stated earlier with regard to 

radio, we find that the existing rule 

strikes the appropriate balance between 

incentivizing investment in 

broadcasting and ensuring that stationbuying opportunities exist for new 

entrants in a market, particularly since 

investment by new entrants is less likely 

in a market that is highly concentrated. 

We share the concerns of commenters 

such as LCCHR, Free Press, NABOB, 

NHMC, and UCC et al. that media 

consolidation could further increase 

entry barriers for ownership by people 

of color and women by decreasing the 

likelihood that television stations would 

be sold to a new entrant. In addition, the 

Commission has observed some 

evidence that divestitures and other 

transactions made to comply with the 

existing ownership limits have resulted 

in new entrants, including minority and 

female owners, entering into local 

television markets. 

115. Ultimately, we find there is no 

basis to conclude that retaining the 

Local Television Ownership Rule with 

the slight modifications we adopt above 

will harm minority and female 

ownership. If anything, we believe that 

retention and modification of the rule 

will maintain a level of competition and 

multiplicity of speakers that could allow 

room for entry into the market, 

including by minority or female owners. 

We do not find that our modifications 

to the Top-Four Prohibition will have a 

negative impact on minority and female 

ownership as the modifications simply 

support the competitive purposes of the 

overall television ownership rule. In 

addition, the modifications will apply 

on a prospective basis, and the case-bycase approach provides the opportunity 

for flexibility in application of the TopFour Prohibition should it prove 

necessary. As the Commission has 

stated in the past, ensuring ‘‘the 

presence of independently owned 

broadcast television stations in the local 

market [indirectly increases] the 

likelihood of a variety of viewpoints and 

preserving ownership opportunities for 

new entrants.’’ We continue to believe 

this to be the case. Accordingly, we find 

that retaining the Local Television 

Ownership Rule as modified furthers 

the public interest by ensuring the 

potential for new and diverse entrants. 

116. Cost-Benefit Analysis. In light of 

the lack of record on the specific costs 

or benefits of this rule, and the limited 

nature of the modifications we adopt 

today, we believe that the public 

interest benefits achieved by retaining 

the rule as so modified outweigh the 

potential economic cost of complying 

with this long-standing structural 

ownership rule. While the NPRM sought 

quantifications of the costs and benefits 

of its proposed changes, we note that 

commenters did not provide such 

quantifications in the record. For all the 

reasons explained in the discussion 

above, we conclude that the public 

interest benefits promoted by the rule 

outweigh the cost of compliance with 

the rule. Also, any potential benefits 

that further consolidation might offer 

television station owners are 

outweighed by potential public interest 

costs to the consumer in the form of 

harms resulting from weakened 

competition within the local broadcast 

television market, less viewpoint 

diversity in the only entities producing 

local programming, and fewer 

opportunities for new market entrants. 

C. Dual Network Rule 

117. We find that the Dual Network 

Rule, which effectively prohibits a 

merger between the Big Four broadcast 

networks (specifically, ABC, CBS, Fox, 

and NBC), remains necessary in the 

public interest to protect and promote 

both competition and localism. With 

regard to competition, we find that the 

Big Four broadcast networks have a 

unique ability to regularly attract large, 

national audiences, which separates 

them from other broadcast and cable 

networks. And given their large 

audience shares, the Big Four broadcast 

networks earn higher rates from 

advertisers seeking to consistently reach 

mass audiences than other networks are 

able to earn. We find that loosening the 

rule to allow a combination between Big 

Four broadcast networks would lessen 


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competition for advertising revenue and 

likely subsequently result in the 

remaining networks paying less 

attention to viewer demand for 

innovative, high-quality programming. 

With regard to localism, we find that the 

Dual Network Rule increases the 

bargaining power of local broadcast 

affiliates and enables them to influence 

Big Four broadcast network 

programming decisions in ways that 

better serve the interests of their local 

communities. 

118. The Dual Network Rule states: 

‘‘A television broadcast station may 

affiliate with a person or entity that 

maintains two or more networks of 

television broadcast stations unless such 

dual or multiple networks are composed 

of two or more persons or entities that, 

on February 8, 1996, were ‘networks’ as 

defined in § 73.3613(a)(1) of the 

Commission’s regulations (that is, ABC, 

CBS, Fox and NBC).’’ Section 

73.3613(a)(1) in turn defines ‘‘network’’ 

as ‘‘any person, entity, or corporation 

which offers an inter-connected 

program service on a regular basis for 15 

or more hours per week to at least 25 

affiliated television licensees in 10 or 

more States; and/or any person, entity, 

or corporation controlling, controlled 

by, or under common control with such 

person, entity or corporation.’’ 

Therefore, the rule allows common 

ownership of multiple broadcast 

networks, but effectively prohibits a 

merger between or among the Big Four 

broadcast networks, ABC, CBS, Fox and 

NBC. The Dual Network Rule has 

existed since the 1940s and has 

remained largely unchanged except for 

a revision in response to the 

Telecommunications Act of 1996. In the 

Telecommunications Act of 1996 

Congress permitted common ownership 

of two or more broadcast networks, but 

not a merger among ABC, CBS, Fox or 

NBC, or between one of these networks 

and the two largest emerging networks, 

UPN or WB. In 2001, after concluding 

in its 1998 Biennial Review that the rule 

as applied to UPN and WB might no 

longer be in the public interest, the 

Commission further modified the dual 

network rule to permit a Big Four 

network to merge with or acquire UPN 

or WB. In the NPRM, the Commission 

sought comment on whether the Dual 

Network Rule remained necessary in the 

public interest to protect competition 

and localism as the Commission 

previously held in its 2010/2014 

Quadrennial Review Order. Specifically, 

the Commission sought comment on 

whether broadcast networks still 

participated in the video marketplace by 

(1) assembling and distributing a 

collection of programming suitable for 

large, national audiences, and (2) selling 

advertising based on this programming 

to large, national advertisers. The 

Commission further asked if the Big 

Four broadcast networks still 

outperform their broadcast and cable 

counterparts in terms of viewership and 

advertising revenue such that they 

represent a ‘‘strategic group’’ within the 

marketplace. The Commission also 

asked how online video distributors and 

digital advertisers have affected 

competition for national broadcast 

television advertising. Finally, the 

Commission sought comment on 

whether the rule still promotes an 

important and sufficient balance 

between the national interests of the Big 

Four broadcast networks and the local 

interests and obligations held by their 

local affiliates. The Commission 

received little comment focused on the 

Dual Network Rule in response to the 

NPRM and the 2021 Update Public 

Notice. In the record, there appears to be 

nominal interest in changing the rule 

while a handful of other commenters 

call for the Commission to retain the 

rule without modification. 

119. After careful review, we find that 

the Dual Network Rule remains 

necessary in the public interest despite 

marketplace changes, as it continues to 

foster our core policy goals of 

competition and localism. Consistent 

with our findings in the past, we find 

that the rule promotes competition in 

the provision of programming suitable 

for large, national audiences and the 

sale of national advertising time and 

furthers localism by maintaining a 

balance among the Big Four broadcast 

networks and their affiliate groups. 

120. Competition. The Big Four 

broadcast networks continue to hold a 

unique position in the video 

marketplace. They earn higher and more 

consistent ratings on linear television 

than other broadcast and cable 

networks. With their high ratings, the 

Big Four broadcast networks in turn are 

highly sought after by advertisers 

seeking to reach large, national 

audiences. The Big Four broadcast 

networks largely compete amongst 

themselves for such advertising 

revenue, and to differentiate themselves, 

they attempt to produce programming 

that will generate the highest ratings 

possible from the widest audiences. We 

find that such competition for revenue 

and audience share serves the public 

interest by spurring the networks to 

compete to develop and deliver 

programming that is innovative, highquality, and of interest to the viewers. 

If two of the networks were to merge, 

competition for this advertising revenue 

would lessen and the networks would 

be less incentivized to compete for 

viewers by providing a national 

television product that is desired by 

viewers. Accordingly, we find that the 

Dual Network Rule remains necessary in 

the public interest to promote 

competition in the provision of 

programming suitable for large, national 

audiences and the sale of national 

advertising time. 

121. This conclusion is supported by 

data that show the Big Four broadcast 

networks are in a class of their own 

when it comes to producing national 

programming and selling national 

advertising time such that a merger 

among these networks would reduce 

competition and would be likely to 

increase these networks’ ability to create 

barriers to entry. As demonstrated by 

the data below, a review of both the 

total primetime ratings of the networks 

and the primetime ratings of individual 

shows reveals that, in general, the Big 

Four broadcast networks consistently 

attract the largest audiences, greatly 

exceeding the ratings of their broadcast 

and cable counterparts. Over the last 

several years, cable networks, as well as 

some online services, have produced 

some high-quality television series that 

can draw high ratings comparable to the 

Big Four broadcast networks or reach 

sizeable audiences. These shows are the 

result of significant investments and 

many are critically acclaimed and 

garner media attention. However, as 

discussed below, this programming still 

does not achieve the sort of consistent 

audience share and advertising revenue 

that the programming of the Big Four 

broadcast networks generate. And we 

continue to find that the Big Four 

broadcast networks form a unique and 

discrete group within the video 

marketplace. 

122. For example, the most popular 

show outside of National Football 

League programming in the 2021–2022 

television season was Yellowstone 

airing on the basic cable channel 

Paramount Network (formerly SpikeTV), 

which averaged 11.312 million total 

viewers across its fourth season. This 

cable network show has surged in 

popularity since its premiere in 2018. 

However, Nielsen ratings data reveal 

that Yellowstone is not only the only 

program aired by Paramount Network to 

make it on the annual list of the 100 

most-popular shows judged by average 

total viewers, but also is the only nonNFL affiliated program from any cable 

network that makes it into the top 70 

most-watched shows. The next highest 

rated show aired by a cable network is 

the cable network History’s Curse of 

Oak Island, which ranks 72nd with a 


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Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Rules and Regulations 12221 

3.611 million total viewers average. In 

contrast, the non-sports programming of 

the Big Four broadcast networks 

dominates the list with 25 of the top 30 

shows averaging at least 7 million total 

viewers in the 2021–2022 season. 

Notably, CBS had 14 of those shows; 

NBC had seven; and Fox and ABC each 

had two. Further, of the 39 non-sports 

telecasts on the list of 100 most-watched 

telecasts, all but two aired on a Big Four 

broadcast network. 

123. Further indicating the unique 

status of the Big Four broadcast 

networks, sports leagues seeking to 

reach the largest audiences generally 

seek to enter into rights agreements with 

those networks in part because of their 

proven ability to reach a mass audience. 

Due to the revenues they are able 

generate by packaging and distributing 

sports programming alongside other 

highly rated network programming, the 

Big Four broadcast networks are also in 

a unique position to pay substantial fees 

to control the television rights for sports 

leagues. In return, sports programming 

historically has generated, and 

continues to generate, high advertising 

revenues for the networks in return. 

Nielsen ratings data for 2021shows that 

the Big Four broadcast networks carried 

sports programming from the NFL, 

MLB, NBA, the Olympics, and NCAA 

that dominated the list of highest rated 

telecasts, representing 40 of the top 50 

and 51 of the top 100 telecasts. 

Moreover, based on the same data, 

sports programming on the Big Four 

broadcast networks represented 39 of 

the top 50 telecasts watched by the 

highly sought after 18–49 demographic. 

Sports programming airing on cable 

networks represented only 9 of the top 

50 telecasts for the 18–49 demographic. 

We agree with WGAW that sports 

leagues have significant incentives to 

prefer to negotiate programming rights 

with the Big Four broadcast networks 

given their proven ability to reach the 

largest audiences with fewer of the 

technical issues sometimes associated 

with online platforms and, in return, 

have the potential to draw the largest 

advertising revenues. While we 

recognize that some leagues are 

experimenting with shifting some 

programming online, most notably, the 

NFL moving Thursday Night Football to 

Amazon Prime, it appears that airing 

programming on a Big Four broadcast 

network continues to be the most 

reliable way to reach the largest, most 

consistent audience possible. The 

continued dominance of the Big Four 

broadcast networks in offering the 

premier sports leagues and events 

demonstrates further that these four 

networks remain distinct from other 

programming channels or networks in 

the video marketplace. 

124. Comparing data regarding the 

average primetime rating of the Big Four 

broadcast networks to the top cable 

networks further demonstrates the 

strength of the Big Four broadcast 

networks. Despite some individual cable 

network programs earning high ratings, 

the average primetime rating of the Big 

Four broadcast networks has remained 

larger than the audience size for even 

the most popular cable networks. In 

2016, the average primetime rating for 

the Big Four broadcast networks was 

3.78, while the average primetime rating 

of the four highest-rated cable networks 

(Fox News Channel, ESPN, TBS, and 

HGTV) was 1.45—roughly a 62% 

difference. Because Spanish-language 

networks reach a different audience 

(i.e., those viewers who speak Spanish), 

only English-language cable networks 

are included in these averages. We note 

that if Spanish-language networks were 

included, it would not greatly impact 

the analyses or lead us to change our 

ultimate conclusions. Moreover, the Big 

Four broadcast networks’ average 

primetime rating was more than four 

times larger than that of the next-highest 

rated English-language broadcast 

network (The CW). At first glance, more 

recent data show the gap in primetime 

ratings between the Big Four broadcast 

networks and either the top cable 

networks or the next largest broadcast 

network is tightening. For example, in 

2020, the Big Four broadcast networks 

averaged a primetime rating of 2.54 

while the four highest rated cable 

networks (Fox News Channel, MSNBC, 

ESPN, and CNN) average a 1.88 rating, 

which is approximately a 26 percent 

difference. The average primetime rating 

of the Big Four broadcast networks was 

nearly three times the size of the next 

highest broadcast network, ION. While 

smaller than in the past, the percentage 

differences between the Big Four 

broadcast networks and all other 

networks remain significant. 

125. Moreover, it should be noted that 

much of the increased cable network 

ratings in 2020 were the result of cable 

news programming that surged in 

popularity during the election season on 

Fox News Channel, MSNBC, and CNN. 

If Fox News Channel, MSNBC, and 

CNN, which are categorized as more 

specialty news networks rather than 

general/variety networks, are removed 

and one adds the three next highest 

rated cable networks (Hallmark 

Channel, HGTV, and TLC), the average 

of the top four cable networks is 

reduced to a 1.15 rating, which is 

roughly a 55 percent difference with the 

Big Four broadcast networks. We also 

note that the differences become much 

greater when one excludes all vertically 

integrated cable networks (i.e. cable 

networks that share the same parent 

company as a Big Four broadcast 

network). In 2020, the average 

primetime rating for the four highest 

rated non-vertically integrated cable 

networks (CNN, Hallmark Channel, 

HGTV, and TLC) was 1.16, which is 

roughly a 55 percent difference with 

that of the Big Four. We also note that 

sports and cable news programming is 

often produced for a more niche 

audience rather than for a national, 

mass audience, the type of competition 

which the Dual Network Rule seeks to 

promote. If one considers only broadcast 

and cable networks that S&P Global 

categorizes as ‘‘General/Variety,’’ the 

four highest rated, English-language 

networks in 2020 were TBS, ION, 

Investigation Discovery, and USA with 

an average primetime rating of 0.77— 

less than a third of the Big Four 

broadcast networks. 

126. Beyond just the primetime hours, 

the Big Four broadcast networks also 

still boast a significant advantage in 

terms of the 24-hour average ratings, 

despite an increase for cable networks’ 

ratings in recent years. In 2020, the 

average 24-hour rating for the Big Four 

broadcast networks was a 1.97 

compared to a 1.15 for the four highest 

rated cable networks (Fox News 

Channel, MSNBC, CNN, and Hallmark 

Channel). 

127. In addition to the disparity in 

ratings, there continues to be a wide 

disparity in the advertising rates 

charged by the Big Four broadcast 

networks and the advertising rates 

charged by other broadcast and cable 

networks, supporting our view that the 

Big Four broadcast networks retain 

distinct characteristics and pursue 

distinct business interests and 

strategies, such that they remain a 

separate strategic group within the 

larger video marketplace. Recent data 

show that the Big Four broadcast 

networks generally charge higher 

advertising rates than cable networks. 

According to S&P Global Market 

Intelligence data for 2020, the average 

advertising rate among the Big Four 

broadcast networks, as estimated in cost 

per thousand views (referred to as cost 

per mille or CPM), was approximately 

$23.68. By contrast, the four highest 

CPMs among cable networks for the 

same period (ESPN, MTV, Discovery 

Channel, and Bravo) had an average of 

approximately $19.39, which is 

approximately 19 percent less than that 

of the Big Four broadcast networks. This 

gap increases if one excludes ESPN, 


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which is owned by Disney, the parent 

company of broadcast network ABC, 

and a network with a uniquely high 

CPM as a result of its sports 

programming. Without ESPN, the Big 

Four cable networks (MTV, Discovery 

Channel, Bravo, and Food Network) 

average $15.40, a 35 percent difference 

as compared to the CPM garnered by the 

Big Four broadcast networks. Of note, 

the 2010/2014 Quadrennial Review 

Order stated there was a 44% gap in 

CPMs between the Big Four broadcast 

networks and the four highest CPMs 

among non-sports cable networks in 

2014. While one may contend that the 

gap is lessening, we still find a 36% gap 

to be significant. Data from 2017 reveal 

that this gap in advertising rates has 

stayed steady in recent years. In 2017, 

the Big Four broadcast networks earned 

an average CPM of $21.43 and the four 

highest CPMs among cable networks 

(ESPN, MTV, Bravo, and Discovery 

Channel) averaged $17.46—a difference 

of approximately 19 percent. If one was 

to exclude ESPN (and replace with next 

highest, TNT), the CPM average of the 

top four cable networks drops to $14.32, 

which is approximately a 33 percent 

difference. 

128. Data on net advertising revenues 

earned by the various top networks 

provide additional evidence that the Big 

Four broadcast networks have a definite 

appeal to advertisers seeking consistent, 

large national audiences. In these data 

as well, we find a wide disparity 

between the net advertising revenue of 

the Big Four broadcast networks and the 

comparable top four cable networks. For 

example, in 2021 the Big Four broadcast 

networks earned an average of $3.102 

billion. In comparison, the four cable 

networks with the highest net 

advertising revenue totals (ESPN, Fox 

News Channel, HGTV, and TBS) 

averaged $1.242 billion in estimated net 

advertising revenues. This represents 

close to a third of the average amount 

received by the Big Four broadcast 

networks. The difference is even wider 

when comparing the net advertising 

revenues of the Big Four broadcast 

networks to the next best performing 

English-language broadcast network. In 

2021, ION earned $463 million in net 

advertising revenue—nearly a seventh 

of the average earned by the Big Four 

broadcast networks. 

129. In sum, we find that the data 

support our conclusion that that the Big 

Four broadcast networks retain distinct 

characteristics and strategies that drive 

competition among this group and 

warrant retention of the Dual Network 

Rule. We find that these four broadcast 

networks continue to be uniquely 

capable of attracting large audiences of 

a size that individual cable networks 

and other broadcast networks cannot 

consistently replicate. For advertisers 

seeking to reach a national audience, 

and for sports leagues seeking to reach 

the largest audiences, the Big Four 

broadcast networks remain the outlets 

able to guarantee them a consistent, 

large national audience. We thus agree 

with WGAW that the Big Four broadcast 

networks still operate as a strategic 

group and their programming is a 

distinct non-substitutable advertising 

product for those attempting to reach 

mass audiences. While on certain 

occasions, a cable network may compete 

with the Big Four broadcast networks 

for high ratings, cable networks have not 

been shown to replicate the same ratings 

success sustained by the Big Four 

broadcast networks. 

130. While we recognize that there 

have been significant changes in 

technology and media consumption in 

the video marketplace since our last 

quadrennial review, most notably from 

the continued growth of online video 

options, we disagree with the Network 

Commenters that the Dual Network Rule 

is no longer in the public interest as a 

result of these newer outlets. As 

described above, we continue to find 

that the mass appeal of Big Four 

broadcast programming sets it apart in 

the video marketplace. With respect to 

online programming, although not 

directly comparable to ratings for 

traditional television, lists are routinely 

published identifying the most streamed 

series and movies, the overwhelming 

majority of which appear on services 

best described as subscription video-ondemand (or SVOD) services. Although 

SVOD services offer notable original 

content and garner many millions of 

subscribers, as their descriptive moniker 

implies, these services pursue different 

strategies and offer different value 

propositions as compared to the Big 

Four broadcast networks. For instance, 

the Big Four broadcast networks offer 

live or linear programming intended to 

garner mass audiences and funded in 

large part through advertising revenues. 

Such network programming is available 

for free and over-the-air from broadcast 

television stations (i.e., without 

requiring internet access or a paid 

subscription) as well as on pay TV (i.e., 

MVPDs) and streaming online. 

Conversely, SVODs offer individual, ondemand programming for their 

customers—generally not live or linear 

national programming. Further, SVODs 

are primarily subscription based 

models, charging viewers fees for 

access, and with programming intended 

to drive subscriptions to the service and 

to retain existing subscribers. Moreover, 

as subscription-based services, SVODs 

do not compete with the Big Four 

broadcast networks for national 

advertising revenue. As previously 

stated, the goal of the Dual Network 

Rule is to foster competition in the 

provision of primetime entertainment 

programming and the sale of national 

advertising time. We find that retention 

of the rule continues to incentivize the 

Big Four broadcast networks to compete 

for viewers by producing a national 

television product that is desired by 

viewers. Allowing a merger between 

two of the Big Four broadcast networks, 

either based on competition from cable 

networks or the perceived competition 

from SVODs, would not promote the 

creation of more national programming, 

but instead, could lead to less national 

programming with wide audience 

appeal. In addition, we also agree with 

WGAE that the Dual Network Rule has 

not prevented the networks’ parent 

companies from creating their own 

SVOD platforms that compete in the 

video marketplace. 

131. In reaching our conclusion that 

the rule remains in the public interest, 

we also disagree with the Network 

Commenters that new competition for 

advertising revenue from digital 

platforms and social media companies, 

supports eliminating the Dual Network 

Rule at this time. Instead, as described 

above, we find that the Big Four 

broadcast networks offer a unique 

advertising product that reaches the 

largest audience possible, something 

that is not routinely matched by either 

cable networks or SVODs. Indeed, we 

find that there is still a market for 

advertisers trying to reach a national 

audience via linear television. Media 

buyer Magna states that national 

broadcast and cable television generated 

$39 billion in 2021, which marked a 7% 

increase over the previous year. 

Moreover, advertising over television is 

often viewed as unique in that it can 

protect brand safety by allowing brands 

to choose when they want an ad to be 

aired in contrast with less controllable 

digital advertising where a brand may 

appear in circumstances beyond the 

control of the corporation placing the 

ad. 

132. Accordingly, the Dual Network 

Rule remains necessary in the public 

interest to promote competition in the 

provision of programming suitable for 

large, national audiences and the sale of 

national advertising time. 

133. Localism. We find that the Dual 

Network Rule also remains necessary to 

foster the Commission’s goal of 

localism. Viewers benefit from localism 

when an affiliate station is able to 


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preempt national, network programming 

without fear of repercussion so that the 

affiliate station can air programming it 

feels is of preeminent importance to the 

local viewer. Eliminating the rule would 

increase the bargaining power of the Big 

Four broadcast networks over the local 

affiliates, which would then reduce the 

ability of the affiliates to influence 

network programming decisions or exert 

their own independence from their 

affiliated network in a manner that best 

serves the needs of their local 

communities. This balance is important 

because the networks and the local 

affiliates have differing incentives and 

obligations. Broadcast networks design 

their programming to reach the largest 

audience possible as well as to 

maximize advertising revenue. Local 

affiliates, by contrast, have obligations 

and incentives to serve their local 

communities by offering local news and 

other programming. The 2022 

Communications Marketplace Report 

notes that ‘‘[d]espite COVID-related 

budget cuts, in 2020, 1,116 television 

stations aired local news.’’ Thus, while 

local affiliates typically want the most 

popular programming a network has to 

offer, an affiliate, nonetheless, may wish 

to offer input to a network on its 

programming so that it better serves the 

specific needs and interests of its 

specific local community or preempt 

network programming for programming 

that is important for its local 

community. 

134. We agree with the Network 

Affiliates that the reduction in the 

number of networks resulting from a Big 

Four network merger would reduce the 

bargaining power for affiliates. With 

fewer networks, affiliates would be less 

able, if at all, to use the availability of 

other top, independently owned 

networks as a bargaining tool to exert 

influence on the programming decisions 

of its network, including with regard to 

program content and scheduling. For 

similar reasons, we also find that the 

existence of other networks gives 

affiliates more leeway to raise locally 

oriented concerns with network 

programming or decide to preempt 

network programming in favor of 

programming that may better fit the 

local needs of their communities. We 

also find that the dual network rule 

potentially provides a local affiliate 

with an additional affiliation option 

should it come to an affiliation 

negotiation impasse with a network. 

135. In addition, we find that the 

increases in affiliation fees paid by the 

local affiliates to the Big Four broadcast 

networks in recent years are evidence of 

the considerable leverage the Big Four 

broadcast networks already hold in their 

negotiations with affiliates. And we 

conclude that eliminating the Dual 

Network Rule would upset the existing 

balance between networks and affiliates 

to the detriment of local viewers. As the 

Network Affiliates note, networks 

originally provided content to the local 

affiliates for free or in exchange for 

advertising availabilities. However, the 

Big Four broadcast networks now draw 

significant sums of revenue via reverse 

compensation from the local affiliates. 

Notably, much of this revenue is 

derived from retransmission consent 

revenue, at least some of which could 

otherwise be expected to flow back into 

local station operations but is instead 

redirected towards national 

programming produced by the 

networks. According to one estimate, 

total industrywide reverse 

compensation payments paid by 

affiliates to broadcast networks have 

increased from roughly $300 million in 

2010 to $2.9 billion in 2017. The 

Affiliates report that some pay as much 

as 70% of their retransmission consent 

revenue to the network, and S&P Global 

estimates that nearly 50% of all 

retransmission consent revenue of the 

Big Four affiliated stations went back to 

the networks in 2019. We find that 

eliminating or loosening the Dual 

Network Rule would only increase the 

leverage of the networks at the potential 

expense of local affiliates and their 

commitment to the needs and interests 

of local viewers. 

136. For these reasons, we agree with 

the Network Affiliates that the Dual 

Network Rule is a ‘‘reinforcing 

mechanism’’ that helps maintain the 

balance between the national goals of 

the networks and the local 

commitments of the affiliates, and it 

thus remains necessary to foster 

localism. If two of the Big Four 

broadcast networks were to merge, local 

broadcast affiliates would have fewer 

options to re-affiliate with a national 

network and would have a reduced 

ability to influence the programming 

decisions of the networks—at a 

detriment to their local communities. 

Accordingly, we find the rule also 

continues to be necessary in the public 

interest to promote localism, and we 

retain the rule without modification. 

137. Finally, we disagree with the 

Network Commenters that traditional 

antitrust protections would sufficiently 

protect the public interest if we 

modified the Dual Network Rule to be 

no longer an ex ante prohibition. As we 

have stated previously, a traditional 

antitrust analysis does not consider the 

harms the Dual Network Rule protects 

against, namely, that a merger may 

‘‘restrict the availability, price, and 

quality of primetime entertainment 

programming and the bargaining power 

and influence of network affiliate 

stations, harming consumers and 

localism.’’ In addition, while a factspecific public interest review by the 

Commission would remain, the 

information and data already before us 

provide a general picture of what a 

merger between two of the Big Four 

broadcast networks may look like, and 

we find that such a merger would harm 

competition and localism such that the 

ex ante prohibition remains appropriate. 

138. Minority and Female Ownership. 

In the NPRM, we sought comment on 

how, if at all, the Dual Network Rule 

impacts female and minority ownership 

of broadcast stations; however, no 

commenters responded to the issue. Due 

to the rule’s focus on mergers between 

the Big Four broadcast networks rather 

than the ownership of broadcast stations 

in local markets, and the absence of 

relevant comment in the record, we find 

that the rule likely does not have a 

meaningful impact on female and 

minority ownership of broadcast 

stations. 

139. Cost Benefit Analysis. In the 

NPRM, we sought comment on the costs 

and benefits of retaining, modifying, or 

eliminating the Dual Network Rule with 

an emphasis on data regarding the 

economic impact any decision may 

have. While commenters provided data 

about the relative market strength of the 

Big Four broadcast networks, no 

commenters addressed data as to the 

rule’s costs and benefits. Ultimately, for 

the reasons explained in the discussion 

above, we find that the benefits of 

maintaining the Dual Network Rule 

outweigh the costs. Specifically, we find 

that the benefits consumers receive by 

keeping the Big Four broadcast 

networks intact (e.g., the increased 

quality and quantity of national 

programming; maintenance of balance 

between networks and affiliates) 

outweigh the potential costs of the rule, 

which might include preventing the 

increased economy of scale that two 

merged networks could attain. 

V. Diversity Related Proposals 

140. Consistent with commitments 

made by the Commission in the 2010/ 

2014 Quadrennial Review Order, the 

NPRM sought comment on three longpending proposals that had previously 

been put forward by the Multicultural 

Media, Telecom and internet Council 

(MMTC), only one of which continues 

to receive support for review in a 

rulemaking and each of which we 

decline to adopt today. In the 2010/2014 

Quadrennial Review Order, the 

Commission stated that it would 


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evaluate the feasibility of extending 

cable procurement type rules to the 

broadcast industry and also consider 

further the ideas of tradeable diversity 

credits and two formulas related to 

broadcast diversity. The Commission 

committed to soliciting input on these 

particular ideas in the document 

initiating the next quadrennial review of 

the media ownership rules. The first 

proposal, extending cable procurement 

requirements to broadcasters, is one we 

will continue to consider outside of this 

proceeding. We decline to pursue the 

other proposals—developing a model 

for market-based tradeable ‘‘diversity 

credits’’ to serve as an alternative 

method for adopting ownership limits 

and adopting formulas aimed at creating 

media ownership limits that promote 

diversity—given the lack of current 

support for them and the lack of detail 

in the record about how they would be 

implemented. 

141. While, for reasons discussed 

below, we do not adopt these specific 

proposals at this time, we continue to 

look for ways to address the lack of 

diversity in media ownership and the 

broader media ecosystem. For example, 

we recognize the calls in this 

proceeding to reinstate the tax 

certificate program in order to foster 

ownership of broadcast stations by 

minorities and women, and we urge 

Congress to heed these requests from 

both broadcasters and public interest 

groups alike. Indeed, the Commission 

has long-supported reinstatement of the 

tax certificate program, recognizing its 

proven ability to broaden the diversity 

of media ownership. In addition to 

seeking ways to enhance ownership 

diversity within the broadcast sector, we 

continue to search for and develop more 

accurate information about the level of 

diversity within the broadcast sector. In 

this regard, as mentioned above, the 

Commission’s Office of Economics and 

Analytics recently released a white 

paper on minority ownership of 

broadcast television stations that will 

continue to inform our understanding of 

the television market and the diversity 

of ownership. As another example, we 

note that the Media Bureau recently 

sought public comment on a petition for 

rulemaking filed by FUSE, LLC, and 

other public interest groups regarding 

the establishment of an annual report on 

the diversity of video programming 

content vendors. We turn below to the 

proposals raised in the NPRM. 

142. Extension of Cable Procurement 

Regulation. First, we determine that the 

issue of whether to extend the cable 

procurement requirement to other 

Commission regulatees should be 

reviewed outside the context of the 

quadrennial review, which per statutory 

mandate focuses on our media 

ownership rules. As part of the 1992 

Cable Act, Congress established the socalled cable procurement requirement, 

which directs operators of cable systems 

to: ‘‘encourage minority and female 

entrepreneurs to conduct business with 

all parts of its operation; and . . . 

analyze the results of its efforts to 

recruit, hire, promote, and use the 

services of minorities and women and 

explain any difficulties encountered in 

implementing its equal employment 

opportunity program.’’ Based on this 

statutory requirement, the Commission 

promulgated section 76.75(e), which 

provides that a cable system must: 

‘‘[e]ncourage minority and female 

entrepreneurs to conduct business with 

all parts of its operation.’’ The rule 

explains that ‘‘[f]or example, this 

requirement may be met by: (1) 

Recruiting as wide as possible a pool of 

qualified entrepreneurs from sources 

such as employee referrals, community 

groups, contractors, associations, and 

other sources likely to be representative 

of minority and female interests.’’ 

143. In response to MMTC’s proposal, 

the NPRM sought comment on the 

Commission’s statutory authority to 

extend the cable procurement 

requirement to broadcasters, given that 

the cable requirement flows directly 

from the statutory mandate pertaining to 

the cable industry contained in the 1992 

Cable Act. In addition, the Commission 

sought comment on whether by 

specifically identifying minority and 

female entrepreneurs, the proposed rule 

would classify those entrepreneurs 

differently from others such as to trigger 

heightened judicial scrutiny, and, if so, 

whether such a proposed rule could be 

modified in some way to avoid legal 

impediments. The NPRM also sought 

data demonstrating whether the cable 

procurement rule had in fact had a 

beneficial impact on minority and 

female participation, as well as input on 

the likelihood of similar impacts in the 

broadcast sector if the requirement was 

extended, given the differences between 

the cable and broadcast industries. 

144. This proposal garnered extremely 

limited comment, with sparse support. 

In particular, commenters failed to 

address the substantive statutory 

authority and constitutional issues the 

Commission set forth in the NPRM. 

Moreover, MMTC, which initially 

proposed the extension of the cable 

procurement requirement to 

broadcasters, has over the course of this 

proceeding broadened its request to now 

suggest an extension of the requirement 

to all Commission regulated entities, not 

just broadcast licensees. Further, MMTC 

now recommends that the Commission 

consider the broader request in the 

context of a new docket. 

145. In light of this, we determine 

today to terminate review of this issue 

in the context of our quadrennial review 

of the structural ownership rules 

applicable to broadcasting. Rather, we 

defer to a later date whether to 

commence a separate proceeding 

regarding extension of the cable 

procurement requirement to other 

Commission regulated entities. While 

we will continue to consider this 

proposal, we note that substantively the 

issue of procurement does not fall 

within the ambit of our quadrennial 

review proceedings, which are 

conducted pursuant to the statutory 

requirement to review our broadcast 

ownership rules every four years to 

determine whether they remain 

‘‘necessary in the public interest as the 

result of competition.’’ Nevertheless, 

because the Commission’s prior 

commitment to seek comment on the 

extension of the cable procurement 

requirement stemmed from previous 

litigation before the Third Circuit 

involving the broadcast ownership 

rules, the Commission found it 

appropriate to seek comment on this 

proposal in the context of the 2018 

Quadrennial Review proceeding. Given 

the limited comment on the extension of 

the cable procurement requirement in 

the instant proceeding, the significant 

remaining open issues, and the specific 

request to broaden the scope of this 

issue to all FCC-regulated industries and 

entities in a separate proceeding, we 

decline to pursue the issue further in 

the context of the quadrennial review 

proceedings. 

146. Other Diversity Proposals. In 

addition to the cable procurement 

proposal, the Commission also 

committed in the 2010/2014 

Quadrennial Review Order to seek 

comment on two other diversity-related 

proposals floated in prior proceedings, 

both of which we decline to adopt for 

lack of support. These proposals were 

described as: (1) developing a model for 

market-based tradeable ‘‘diversity 

credits’’ to serve as an alternative 

method for adopting ownership limits; 

and (2) adopting a ‘‘tipping point’’ 

formula and/or a ‘‘source diversity 

formula.’’ While the concept of diversity 

credits was not well-defined when 

initially proposed to the Commission in 

2002, the general idea appears to be that 

a system of ‘‘diversity credits’’ could be 

created that could be traded in a marketbased system and redeemed by the 

buyer of a broadcast station to offset any 

increased concentration that would 

result from the proposed transaction. 


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The diversity credits concept was 

further refined in 2004, with the idea 

being that the number of diversity 

credits attached to each license would 

be commensurate with the extent to 

which the licensee of the station was 

considered to be socially and 

economically disadvantaged. The 

diversity credits proposal suggested that 

when a transaction occurred that was 

deemed to promote diversity (and here 

the proponents suggested a transaction 

that would result in the breakup of a 

local radio ownership cluster, or the 

sale of a station to a socially and 

economically disadvantaged business), 

the Commission would award the seller 

additional diversity credits 

commensurate with the extent to which 

the transaction promotes diversity. 

Similarly, when a transaction reduced 

diversity (perhaps by creating an 

ownership combination or expanding an 

ownership cluster), the Commission 

would require the submission of a 

certain number of diversity credits from 

the buyer, commensurate with the 

extent to the which the transaction 

reduced diversity. In 2002, MMTC 

proposed the ‘‘tipping point formula’’ as 

an alternative to the approach the 

Commission used at the time of flagging 

radio station transactions that, based on 

an initial analysis, would result in a 

level of local radio concentration 

implicating public interest concerns for 

maintaining diversity and competition. 

MMTC’s tipping point formula was 

based on the premise that platforms 

should not control so much advertising 

revenue that well run independents 

cannot survive or offer meaningful local 

service. The source diversity formula 

appears to seek to measure the level of 

consumer welfare derived from 

viewpoint diversity in the broadcast 

market. It was suggested that the source 

diversity formula could be used as a 

thermometer to determine whether a 

national or local market manifests 

strong diversity, moderate diversity, or 

slight diversity. It was proposed that the 

Commission conduct a negotiated 

rulemaking to determine what 

significance to accord to various 

temperature readings on the HHI for a 

Diversity thermometer. For example, 

what temperatures would reflect poor 

health, versus measurements indicative 

of strong health. Because many details 

associated with these proposals had 

never been developed when the ideas 

were presented previously, the NPRM 

sought to unpack these dormant issues 

and asked many specific questions 

about the proposals. The Commission 

sought to elicit answers about threshold 

matters such as statutory authority, key 

definitions, feasibility, and the 

continued relevance of the proposals 

given the significant passage of time 

since they were initially put forth. 

147. There was extremely limited 

comment on these proposals, with most 

commenters either opposing the ideas or 

finding the proposals themselves to lack 

sufficient specificity. MMTC, the chief 

proponent of these ideas, itself notes 

that perhaps the proposals are not wellsuited for review in a notice and 

comment rulemaking and might be more 

appropriately considered in some other 

forum. Given the sparse record on these 

proposals and the lack of any additional 

guidance in the record about how they 

would operate in practice and integrate 

into the Commission’s structural 

ownership rules, we decide today to 

terminate further review of these 

proposals. 

VI. Procedural Matters 

148. Final Regulatory Flexibility 

Analysis. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared a 

Final Regulatory Flexibility Analysis 

(FRFA) of the possible significant 

economic impact on small entities of the 

policies and rules addressed in the 

Report and Order. 

A. Need for, and Objectives of, the 

Report and Order 

149. The Report and Order (Order) 

concludes the 2018 Quadrennial Review 

of the broadcast ownership rules, which 

were initiated pursuant to Section 

202(h) of the Telecommunications Act 

of 1996 (1996 Act). The Commission is 

required by statute to review its media 

ownership rules every four years to 

determine whether they ‘‘[a]re necessary 

in the public interest as the result of 

competition’’ and to ‘‘repeal or modify 

any regulation it determines to be no 

longer in the public interest.’’ 

150. The media ownership rules that 

are subject to this quadrennial review 

are the Local Radio Ownership Rule, the 

Local Television Ownership Rule, and 

the Dual Network Rule. These rules are 

found, respectively, at 47 CFR 

73.3555(a), (b) and 73.658(g). 

Ultimately, while the Commission 

acknowledges the impact of new 

technologies on the media marketplace, 

it concludes that some limits on 

broadcast ownership remain necessary 

to safeguard and promote the 

Commission’s policy goals of fostering 

competition, localism, and diversity. 

Based on our careful review of the 

record, we find that our existing rules, 

with some minor modifications, remain 

necessary in the public interest. 

151. Specifically, we retain the Dual 

Network Rule and the Local Radio 

Ownership Rule, which we modify only 

to make permanent the interim contouroverlap methodology long used to 

determine ownership limits in areas 

outside the boundaries of defined 

Nielsen Audio Metro markets and in 

Puerto Rico. We likewise retain the 

Local Television Ownership Rule with 

modest adjustments to reflect changes 

that have occurred in the television 

marketplace. The existing Local 

Television Ownership Rule ensures 

competition among local broadcasters 

while allowing for flexibility should the 

circumstances of local markets justify it. 

Accordingly, today we update the 

methodology for determining station 

ranking within a market to better reflect 

current industry practices, and we 

extend the existing prohibition on 

circumventing the ownership of two 

top-four ranked stations in a market. We 

find that the modifications adopted 

today will enable the Commission to 

promote competition, localism, and 

viewpoint diversity more effectively 

going forward. 

152. Local Radio Ownership Rule. The 

Commission determines that the Local 

Radio Ownership Rule remains 

necessary in the public interest as the 

result of competition. The purpose of 

the rule is to ensure competition 

between broadcast radio stations within 

a market so that radio owners are 

motivated to provide the highest quality 

of service to the public. In addressing 

the public interest, the Commission 

notes that competition stems from the 

premise that the listening public, not 

the advertising industry, is the 

constituency that the rule is intended to 

serve. If radio owners were allowed to 

acquire more radio stations than 

allowed by the rule, the Commission 

expresses skepticism whether owners 

would be able to maintain the same 

level of service on their stations given 

reduced competition. Further, the 

Commission states that allowing one 

entity to own more radio stations in a 

market than currently permitted would 

threaten the viability of smaller stations. 

In the Order, the Commission articulates 

that the rule already allows a generous 

amount of common ownership within a 

market and does not limit ownership 

across markets. 

153. The Order leaves the market 

definition in place because it reflects the 

type of competition that the rule was 

intended to promote—competition 

between local radio stations. The Order 

also preserves the existing market size 

tiers and numerical limits. The 

Commission finds that the current tiers 

and limits prevent consolidation to the 


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level of monopolization or near 

monopolization in many, if not most, 

markets. As to the Commission’s AM/ 

FM subcaps, the Order leaves in place 

the existing limits, and notes that lifting 

them would have deleterious impacts 

on the AM band, including excessive, 

undue concentration of ownership. The 

Order declines to revise the 

presumption for certain embedded 

markets because the existing 

presumption sufficiently addresses 

concerns regarding stations in 

embedded markets. 

154. Local Television Ownership Rule. 

The Commission finds that the Local 

Television Ownership Rule remains 

necessary to promote competition 

among broadcast television stations in 

local markets as there are still market 

characteristics unique to broadcast 

television. The Commission also finds 

that ensuring broadcast television 

stations remain independently owned 

and competitive in providing 

programming that serves the interests 

and needs of local communities 

promotes localism goals more 

effectively than permitting greater 

consolidation. 

155. The Commission observes that 

the numerical limits set under the rule 

continue to strike the appropriate 

balance of enabling some efficiencies of 

common ownership while maintaining a 

level of competition amongst broadcast 

television stations to ensure that they 

continue to serve the public interest. 

Likewise, the Order holds that the TopFour Prohibition, and its case-by-case 

approach, strikes a reasonable balance 

between preserving and supporting 

enhancements of the public interest 

standards of competition, localism, and 

diversity with occasional incidences of 

acquisitions under special 

circumstances that warrant an exception 

to the prohibition. Reflecting the 

Commission’s commitment to accurate 

measurements of the industry for 

purposes of this rule, the Order revises 

the Commission’s methodology used to 

determine market ranking and 

performance of stations. To preserve the 

intended purpose of the prohibition, the 

Order seeks changes to the rule that 

would effectively close loopholes used 

by some broadcast stations to acquire 

affiliations from top-four rated fullpower stations and moving such 

affiliations to multicast streams or low 

power stations. 

156. The Commission finds that the 

rule is consistent with the objective of 

fostering minority and female 

ownership within the industry. Thus, 

retaining the existing ownership limits 

preserves opportunities for greater 

ownership diversity. Media 

consolidation, which the Commission 

believes would increase were the rule to 

be relaxed or eliminated, would result 

in additional entry barriers and decrease 

the likelihood that television stations 

would be sold to a new entrant, 

including a minority or female owner. 

As the Commission observes, evidence 

shows that divestitures and other 

transactions made to comply with the 

existing ownership limits have resulted 

in new entry, including by minority and 

female owners, into local television 

markets. 

157. Dual Network Rule. In the Order, 

the Commission finds that the Dual 

Network Rule remains necessary in the 

public interest to protect and promote 

competition in the provision and 

creation of primetime entertainment 

programming and the sale of national 

advertising time. Based on the record 

collected in the 2018 Quadrennial 

Review, the Commission finds that the 

Big Four broadcast networks (ABC, CBS, 

Fox, and NBC) have a unique ability to 

regularly attract large primetime 

audiences, which separates them from 

other broadcast and cable networks. 

158. The Big Four broadcast networks 

comprise a strategic group in the 

national advertising marketplace and 

compete mostly amongst themselves for 

advertisers that seek to reach large, 

national audiences consistently and are 

willing to pay a premium to reach that 

audience. The Commission finds that 

the Big Four broadcast networks invest 

in and create innovative high-quality 

programming particularly during 

primetime that will draw advertisers 

and thus bring in the highest advertising 

revenues. The merger of two of the Big 

Four broadcast networks would 

subsequently decrease that competition, 

leaving advertisers with fewer options 

to reach a mass audience, and would 

also reduce the remaining networks’ 

need to produce the innovative 

programming desired by viewers. 

159. The Order also determines that 

the Dual Network Rule is necessary to 

foster the Commission’s goal of 

localism. Specifically, the Commission 

finds that eliminating the rule would 

increase the bargaining power of the 

networks over the local affiliates, which 

would then reduce the ability of the 

affiliates to influence network 

programming decisions or exert their 

own independence from their affiliated 

network in a manner that best serves 

their local communities. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

160. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an initial Regulatory Flexibility 

Act Analysis (IRFA) was incorporated in 

the Notice of Proposed Rulemaking 

(NPRM), released in December 2018. 

The Federal Communications 

Commission (Commission) sought 

written public comment on the 

proposals in the NPRM, including 

comment on the IRFA. There were no 

comments filed that specifically 

addressed the proposed rules and 

policies presented in the IRFA. 

C. Response to Comments by the Chief 

Counsel for Advocacy of the Small 

Business Administration 

161. 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 

Proposed Rules Will Apply 

162. 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 rules adopted herein. 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 concern 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. 

163. Television Broadcasting. This 

industry is comprised of 

‘‘establishments primarily engaged in 

broadcasting images together with 

sound.’’ These establishments operate 

television broadcast studios and 

facilities for the programming and 

transmission of programs to the public. 

These establishments also produce or 

transmit visual programming to 

affiliated broadcast television stations, 

which in turn broadcast the programs to 

the public on a predetermined schedule. 

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 businesses having $41.5 

million or less in annual receipts as 


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small. 2017 U.S. Census Bureau data 

indicate that 744 firms in this industry 

operated for the entire year. Of that 

number, 657 firms had revenue of less 

than $25,000,000. Based on this data we 

estimate that the majority of television 

broadcasters are small entities under the 

SBA small business size standard. 

164. As of June 2023, there were 1,375 

licensed commercial television stations. 

Of this total, 1,256 stations (or 91.3%) 

had revenues of $41.5 million or less in 

2022, according to Commission staff 

review of the BIA Kelsey Inc. Media 

Access Pro Television Database (BIA) on 

April 7, 2023, and therefore these 

licensees qualify as small entities under 

the SBA definition. In addition, the 

Commission estimates as of June 2023, 

there were 383 licensed noncommercial 

educational (NCE) television stations, 

381 Class A TV stations, 1,902 LPTV 

stations and 3,123 TV translator 

stations. The Commission, however, 

does not compile and otherwise does 

not have access to financial information 

for these television broadcast 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 these 

television station licensees, we presume 

that all of these entities qualify as small 

entities under the above SBA small 

business size standard. 

165. 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. 

166. The Commission estimates that 

as of June 30, 2023, there were 4,463 

licensed commercial AM radio stations 

and 6,675 licensed commercial FM 

radio stations, for a combined total of 

11,138 commercial radio stations. Of 

this total, 11,136 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 7, 

2023, and therefore these licensees 

qualify as small entities under the SBA 

definition. In addition, the Commission 

estimates that as of June 30, 2023, there 

were 4,236 licensed noncommercial 

(NCE) FM radio stations, 1,989 low 

power FM (LPFM) stations, and 8,935 

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. 

167. 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, 

Recordkeeping, and Other Compliance 

Requirements 

168. The Order requires modification 

of several FCC forms and their 

instructions: (1) FCC Form 301, 

Application for Construction Permit for 

Commercial Broadcast Station; (2) FCC 

Form 314, Application for Consent to 

Assignment of Broadcast Station 

Construction Permit or License; and (3) 

FCC Form 315, Application for Consent 

to Transfer Control of Corporation 

Holding Broadcast Station Construction 

Permit or License. The change will 

involve replacing instructions on the 

forms for the Local Television 

Ownership Rule, which stated that 

‘‘among the top four stations in the 

DMA, based on the most recent all-day 

(9:00 a.m.-midnight) audience share as 

determined by Nielsen or a comparable 

professional survey organization . . .’’ 

The instruction’s will be modified to 

incorporate the new standard 

measurement of ‘‘Sunday to Saturday, 

7AM to 1AM daypart’’ in order to more 

accurately reflect a station’s 

performance in terms of audience share. 

In addition, ratings data submitted will 

now need to be averaged over the 12- 

month period preceding a transaction. 

The impact of these minor changes will 

be the same on all entities, and we do 

not anticipate that compliance will 

require the expenditure of any 

additional resources or place additional 

burdens on small businesses. 

169. As a result of these modified 

reporting requirements, we do not 

believe that small businesses will need 

to hire additional professionals (e.g., 

attorneys, engineers, economists, or 

accountants) to comply with the 

updated standard under the Local 

Television Ownership Rule’s Top-Four 

Prohibition. Further, the Order delegates 

to the Media Bureau the authority to 

update FCC forms to conform with the 

rule changes adopted therein. 

F. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

170. The RFA requires an agency to 

provide, ‘‘a description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities. . .including a statement of the 

factual, policy, and legal reasons for 

selecting the alternative adopted in the 

final rule and why each one of the other 

significant alternatives to the rule 

considered by the agency which affect 

the impact on small entities was 

rejected.’’ 

171. In conducting the quadrennial 

review, the Commission has three chief 

alternatives available for each of the 

Commission’s media ownership rules— 

eliminate the rule, modify it, or, if the 

Commission determines that the rule is 

‘‘necessary in the public interest,’’ retain 

it. The Commission finds that the rules 

adopted in the Order, which are 

intended to achieve the policy goals of 

competition, localism, and diversity, 

will continue to benefit small entities by 

fostering a media marketplace in which 

small entities are better able to compete 

and sustain services to their 

communities. The Commission 

discusses below several ways in which 


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the rules may benefit small entities as 

well as steps taken, and significant 

alternatives considered, to minimize 

any potential burdens on small entities. 

172. In consideration of the burdens 

that paperwork can place especially on 

small entities with limited resources, 

this Order proposes no new reporting 

requirements, performance standards or 

other compliance obligations, although, 

as discussed above, it modifies, as 

necessary, certain existing reporting 

forms. 

173. Local Radio Ownership Rule. In 

the Order, the Commission finds that 

the Local Radio Ownership Rule 

remains necessary in the public interest. 

The Commission finds that retaining the 

rule will foster the ability of all stations, 

large and small alike, to operate in a 

competitive environment. Without the 

rule, the Commission finds that the 

competitive and business environment 

for smaller stations could deteriorate 

due to consolidation among dominant 

firms, such that many smaller stations 

may be forced to exit their respective 

markets. By preserving the rule in the 

Order, the Commission states that 

opportunities for diffuse ownership are 

preserved. 

174. In the Order, the Commission 

preserves the AM/FM subcap limits. 

The Order preserves the subcaps, 

finding that they contribute necessary 

support to the public interest factors of 

competition, localism, and diversity. As 

to commenters’ recommendation that 

the Commission should dispense with 

the subcaps altogether, the Commission 

expresses concern that without the rule, 

smaller stations could face an influx of 

larger station-group acquisitions, which 

would lead to increased concentration 

of ownership and a race to the bottom 

for purposes of competition and local 

content. 

175. Local Television Ownership Rule. 

The Order retains the Local Television 

Ownership Rule subject to some small 

modifications. Notably, the Commission 

ends the loophole for the Top-Four 

Prohibition’s limit on certain broadcast 

network affiliation acquisitions through 

some broadcasters’ use of multicast 

streams and LPTV stations. The 

Commission modifies the provision in 

the current rule that determines market 

ranking and performance according to 

Nielsen or other substitutable data. The 

Order adopts a ‘‘Sunday to Saturday, 

7AM to 1AM daypart’’ to determine 

audience share ‘‘from ratings averaged 

over a 12-month period immediately 

preceding the date of application’’ as the 

new standard for the Top-Four 

Prohibition (and in concert with it, 

adopts the 7AM to 1AM daypart for 

failing station waivers as well). Further, 

to accurately measure a station’s 

audience share and ranking, the Order 

establishes a new methodology by 

which the Commission will aggregate 

the audience share of all free-toconsumer non-simulcast multicast 

programming airing on streams owned, 

operated, or controlled by a station. The 

Commission believes that this 

adjustment will better equip the agency 

to measure stations’ performance and 

competitive strength within a given 

market. In the Commission’s analysis of 

the Local Television Ownership Rule, 

detailed consideration is given in 

analyzing the effects on consumers and 

broadcasters of the rule’s preservation, 

the rule’s absence, or the rule’s 

modification. The Commission’s 

evaluation of small business 

involvement in the local television 

marketplace ultimately favors a 

preservation of a modified version of the 

rule, as further explained below. 

176. The Commission finds that the 

rule, as modified, will help to ensure 

that ownership structures and 

concentrations within local television 

markets do not pose obstacles to entry 

for small entities. The Commission finds 

that leaving the rule in place will 

actually allow for more firms, including 

those falling under the definition of 

small entity, to gain entry into or to 

preserve their already existing 

involvement within local markets as 

well as to compete effectively against 

other stations. Preserving the rule helps 

to mitigate and minimize those negative 

economic impacts resulting from 

enlarged market concentration, and in 

turn minimized competition, were 

broadcast station groups allowed to 

acquire stations within markets without 

reasonable limitation. The modifications 

established in the Order, which close 

affiliation loopholes, work to ensure the 

integrity of the rules necessary for the 

maintenance of business environments 

in which small stations can seek 

entrance and growth. Likewise, 

modifications to the provisional 

standard for the measurement of market 

ranking and performance will promote 

the interests of small entities because 

the new standard will offer a clearer 

snapshot of what market competition 

exists among broadcasters in a given 

DMA. 

177. Dual Network Rule. The Order 

preserves the Dual Network Rule, which 

effectively prohibits a merger between 

the Big Four broadcast networks 

(specifically, ABC, CBS, Fox, and NBC). 

By keeping the rule in place, the 

Commission finds that the bargaining 

power of local broadcast affiliates, 

including many small entities, is 

promoted by enabling such entities to 

better influence top-four network 

programming decisions in ways that 

better serve the interests of local 

communities. Unlike the Big Four 

broadcast networks, which design their 

shows with the goal of producing the 

largest national audience possible, small 

broadcast affiliates typically design their 

programming to serve niche audiences. 

Such design is indicative of local 

broadcasters’ independence from their 

affiliated network. Such independence 

often times is reflective of local content 

that best serves the particular and 

localized needs of individual 

communities. The Commission finds 

that the bargaining power of affiliates 

would diminish were there to be a 

reduction in the number of the Big Four 

broadcast networks. The lasting 

economic impacts from the retreat of 

such bargaining power may diminish 

local broadcasters’ abilities to provide 

the type of local programming that the 

Commission believes increases 

competition for local audiences. Thus, 

by eliminating the Dual Network Rule, 

local affiliates would be further 

displaced from the networks in terms of 

their negotiating power. 

178. In summary, the Commission 

agrees with the local affiliates that the 

Dual Network Rule is a ‘‘reinforcing 

mechanism’’ that helps maintain local 

commitments of the affiliates, and it 

thus remains necessary to foster 

localism and the health of affiliates, 

including many small entities. If two of 

the Big Four broadcast networks were to 

merge, affiliates would have fewer 

options to re-affiliate with a national 

network and would have a reduced 

ability to influence the programming 

decisions of the networks—at a 

detriment to both the affiliate networks 

and their local communities. 

G. Report to Congress 

179. The Commission will send a 

copy of the Order, including this FRFA, 

in a report to Congress pursuant to the 

Congressional Review Act. In addition, 

the Commission will send a copy of the 

Order, including the FRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. A copy of the 

Order and FRFA (or summaries thereof) 

will also be published in the Federal 

Register. 

180. Final Paperwork Reduction Act 

Analysis. This document does not 

contain new or modified information 

collection requirements subject to the 

Paperwork Reduction Act of 1995 

(PRA), Public Law 104–13. In addition, 

therefore, it does not contain any new 

or modified information collection 

burden for small business concerns with 

fewer than 25 employees, pursuant to 


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Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Rules and Regulations 12229 

the Small Business Paperwork Relief 

Act of 2002, Public Law 107–198, see 44 

U.S.C. 3506(c)(4). This document may 

contain non-substantive modifications 

to approved information collection(s). 

Any such modifications will be 

submitted to OMB for review pursuant 

to OMB’s non-substantive modification 

process. 

181. 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 to Congress 

and the Government Accountability 

Office pursuant to 5 U.S.C. 801(a)(1)(A). 

VII. Ordering Clauses 

182. Accordingly, it is ordered, that 

pursuant to the authority contained in 

sections 1, 2(a), 4(i), 303, 307, 309, 310, 

and 403 of the Communications Act of 

1934, as amended, 47 U.S.C. 151, 152(a), 

154(i), 303, 307, 309, 310, and 403, and 

section 202(h) of the 

Telecommunications Act of 1996, this 

Report and Order is adopted. The 

Report and Order and rule 

modifications attached to Appendix A 

of the document shall be effective thirty 

(30) days after publication of the text or 

summary thereof in the Federal 

Register, except that any nonsubstantive changes to Commission 

Forms required as the result of the rule 

amendments adopted herein will not 

become effective until approved by the 

Office of Management and Budget. 

183. it is further ordered, that, should 

no petitions for reconsideration or 

petitions for judicial review be timely 

filed, the proceeding MB Docket No. 18– 

349 is terminated. 

184. It is further ordered, that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Report and Order, including the 

Final Regulatory Flexibility Analysis, to 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

185. It is further ordered, that the 

Office of the Managing Director, 

Performance Evaluation and Records 

Management shall send a copy of this 

Report and Order in a report to be sent 

to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Radio, Television. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. Office of the Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 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 and 339. 

■ 2. Amend § 73.3555 by revising 

paragraphs (b)(1)(ii) and (b)(2) and Note 

11 to read as follows: 

§ 73.3555 Multiple ownership. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) At the time the application to 

acquire or construct the station(s) is 

filed, at least one of the stations is not 

ranked among the top four stations in 

the DMA, based on the Sunday to 

Saturday, 7AM to 1AM daypart 

audience share from ratings averaged 

over a 12-month period immediately 

preceding the date of application, as 

measured by Nielsen Media Research or 

by any comparable professional, 

accepted audience ratings service. For 

any station broadcasting multiple 

programming streams, the audience 

share of all free-to-consumer nonsimulcast multicast programming airing 

on streams owned, operated, or 

controlled by a single station shall be 

aggregated to determine the station’s 

audience share and ranking in a DMA 

(to the extent that such streams are 

ranked by Nielsen or a comparable 

professional, accepted audience ratings 

service). 

(2) Paragraph (b)(1)(ii) of this section 

(Top-Four Prohibition) shall not apply 

in cases where, at the request of the 

applicant, the Commission makes a 

finding that permitting an entity to 

directly or indirectly own, operate, or 

control two television stations licensed 

in the same DMA would serve the 

public interest, convenience, and 

necessity. The Commission will 

consider showings that the Top-Four 

Prohibition, including note 11 to this 

section, should not apply due to specific 

circumstances in a local market or with 

respect to a specific transaction on a 

case-by-case basis. 

* * * * * 

Note 11 to § 73.3555: a. An entity will not 

be permitted to directly or indirectly own, 

operate, or control two television stations in 

the same DMA through the execution of any 

agreement (or series of agreements) involving 

stations in the same DMA, or any individual 

or entity with a cognizable interest in such 

stations, in which a station (the ‘‘new 

affiliate’’) acquires the network affiliation of 

another station (the ‘‘previous affiliate’’), if 

the change in network affiliations would 

result in the licensee of the new affiliate, or 

any individual or entity with a cognizable 

interest in the new affiliate, directly or 

indirectly owning, operating, or controlling 

two of the top-four rated television stations 

in the DMA at the time of the agreement. 

Parties should also refer to the Second Report 

and Order in MB Docket No. 14–50, FCC 16– 

107 (released August 25, 2016). 

b. Further, an entity will not be permitted 

through the execution of any agreement (or 

series of agreements) to acquire a network 

affiliation, directly or indirectly, if the 

change in network affiliation would result in 

the affiliation programming being broadcast 

from a television facility that is not counted 

as a station toward the total number of 

stations an entity is permitted to own under 

paragraph (b) of this section (e.g., a low 

power television station, a Class A television 

station, etc.) or on any television station’s 

video programming stream that is not 

counted separately as a station toward the 

total number of stations an entity is 

permitted to own under paragraph (b) of this 

section (e.g., non-primary multicast streams) 

and where the change in affiliation would 

violate this Note were such television facility 

counted or such video programming stream 

counted separately as a station toward the 

total number of stations an entity is 

permitted to own for purposes of paragraph 

(b) of this section. 

[FR Doc. 2024–02577 Filed 2–14–24; 8:45 am] 

BILLING CODE 6712–01–P 


khammond on DSKJM1Z7X2PROD with RULES3