The FM Non-Duplication Rule was adopted by the U.S. Federal Communications Commission (FCC) on July 1, 1964, after a year's consideration. It limited holders of FM licenses in cities of more than 100,000 who also held AM licenses to simulcasting no more than 50 percent of their AM signal on the FM station. The commissioners considered the excessive simulcasting wasteful and an impediment to the development of FM broadcasting. A year later, the FCC reaffirmed the rule, and, after a delay requested by broadcasters, set its effective date for October 1965; some stations were granted exemptions if they could demonstrate their simulcasting served the public good.
Broadcasters generally resisted the rule at first, claiming it was overregulation that would impose considerable costs on stations for new personnel and equipment. It was challenged in court as a violation of the First Amendment and upheld in a decision written by future Supreme Court Chief Justice Warren Burger. Later the FCC extended the rule's requirements to 75 percent original content on FM stations and its applicability to stations in cities of more than 25,000.
The rule's implementation led to the rise of freeform radio in the late 1960s, where disc jockeys played whatever music they wanted without regard to genre or format, taking advantage of FM's higher sound quality and stereo capability. Most of their playlists tended toward rock of the era; in later years the canon of music and artists that developed evolved into the album-oriented and eventually classic rock formats. This growth often came at the expense of the classical music stations which had previously dominated the FM dial. By the late 1970s FM music stations had more listeners than their AM counterparts, even as they had largely moved away from their freeform roots, and in March 1986 the FCC repealed the rule to help AM stations, which had declined as FM grew.
Background
Since the advent of commercial radio broadcasting in the United States during the 1920s, broadcasters and listeners had lamented the problem of static on its AM signals, usually created by interference from electrical storms. Engineers began to work on developing technology to transmit and receive higher-frequency signals above 40MHz over great distances. By the mid-1930s, Edwin Howard Armstrong had developed frequency modulation (FM) technology that could propagate signals widely with no static at all.
Several issues hindered FM's commercial establishment until the late 1940s. One was litigation over patents between Armstrong and RCA, Armstrong's former employer. RCA had chosen to invest heavily in television, another new technology. Regulatory disputes with the newly created Federal Communications Commission and the intervention of World War II also played a role. Many FM stations soon had to shut down for lack of a market, despite the superior audio quality they offered, since listeners had to purchase FM-capable receivers. Armstrong's suicide in 1954 further adversely affected FM since he had financially supported Continental, one of the few FM networks at the time.
FM's fortunes began to turn in the late 1950s with television's rapid growth and AM radio's increasingly crowded dial. Popular music formats replaced scripted radio programming and variety shows migrated to TV. This left broadcasters looking for new directions to expand their markets. In 1957 the number of applications for FM licenses increased for the first time in almost a decade, primarily in smaller markets that had run out of space for new television or AM channels. In larger markets, the proliferation of AM stations had led the FCC to restrict many of the newer ones to daytime-only to avoid interference; since the FCC did not require that restriction for FM radio, it was a logical place for broadcasters to go.
The increasing popularity of stereophonic recordings also helped FM's growth. In 1952, New York City-area classical music station WQXR had hit on the idea of simulcasting on its AM and FM stations, with each carrying a different channel, so listeners could use two radios to create a stereo experience; other stations, mostly classical and jazz, followed the practice. Because the FCC frowned on that as a waste of spectrum, in 1961 it approved technical standards for wideband FM stereo broadcasting via the multiplexing capability of the higher frequencies and the first full-stereo wideband FM stations began broadcasting within months. Many existing FM stations still carried the same signal as their AM sister stations, assuming that FM was merely an added bonus for listeners who wanted the higher sound quality and were willing to pay for equipment to get it. Broadcasters at the time saw such little value in their FM stations that they gave advertising time away with purchases on their AM stations.
Rule
Proposition, adoption, and criticism
By 1963 the FCC was dominated by Kennedy administration appointees, led by chairman Newton Minow, who were interested in increasing competition in certain sectors of the radio market. That year the commission first discussed the possibility of restricting AM-FM duplication. While it had tolerated the practice initially since it allowed FM stations to get on the air, it now saw it as a waste of spectrum.
The commissioners settled on a rule that limited AM stations licensed in cities of more than 100,000 people to no more than 50 percent duplication of their AM signal on an affiliated FM station. Duplication was defined as either the simulcasting of the signal or its rebroadcast within 24 hours. Stations had until August 1965 to comply.
"[T]he broadcast of a single program by two channels is inefficient" the FCC explained in its 1964 annual report. "The Commission feels that this is a significant move toward the time when AM and FM will be regarded as component parts of a total aural service for assignment purposes" it said. It hoped also that it would "give new impetus to FM developments."
Many broadcasters resisted the new rule, citing the costs it would impose on them to hire air staff and find studio space for the additional FM content. In early 1965, the FCC extended the deadline for compliance two months, until October of that year, and announced that stations that could demonstrate their simulcasting served the public good would be exempted from the rule. Commissioner Kenneth Cox spoke in defense of the rule at the 1965 convention of the National Association of Broadcasters (NAB), the industry trade group. Generally, he said, duplication was "a luxury we can't afford". More specifically, he also pointed to the unfair advantage simulcast FM stations had over those that had no AM counterpart, since the former sold their advertising time at no additional charge to advertisers who bought time on the AM station.
In response, Ben Strouse, president of Washington's WWDC-FM and chair of the NAB's FM committee, said that his market was already well served and that requiring additional programming would leave many stations pursuing market segments too small to support them, to the detriment of the industry and the FCC's good intentions. "[S]ometimes the love of a government agency can be the kiss of death" he warned. While praising the FCC's general support for FM, he said, the agency "loves [it] too much."
At least one broadcaster from a smaller market did not seem to mind. Oliver Keller, the president of WTAX in Springfield, Illinois, told The New York Times he welcomed the rule as serving the public interest. He was already offering different programming anyway on his AM and FM stations, telling the newspaper that the next day the former would be broadcasting live coverage of the Gemini 3 spaceflight launch while the latter would continue playing music.
Almost 150 stations filed for exemptions; the FCC granted 30 of them on a long-term basis. Most were for stations whose AM signal was still restricted to the daylight hours. Two were for New York stations that broadcast in foreign languages and also had constraints on their programming. WHOM (now WZRC and WNYL respectively), was a daytime-only station which broadcast in Spanish, and Yiddish-language WEVD, which shared its frequency with two other stations. Two stations in Puerto Rico were also granted long-term exemptions for purely technical reasons: their FM transmissions were the only way their signals could reach the entire island. An additional 12 stations were granted short-term exemptions for economic reasons, because they needed more time and money to get a separate FM service set up.
Legal challenge
By the beginning of 1967, after several additional delays and requests for exemptions, Section 73.242 of the FCC's code of regulations had been amended and the rule had taken full effect. Shortly afterward, San Francisco's KKHI, one of the stations to which the FCC had granted a temporary exemption good through April of that year, appealed the denial of its application for a permanent exemption to the United States Court of Appeals for the District of Columbia, which has appellate jurisdiction over administrative actions of federal agencies. KKHI also challenged the Non-Duplication Rule itself as being outside the FCC's authority and an unconstitutional infringement of its right to freedom of speech under the First Amendment.
KKHI had sought its exemption primarily on the grounds that it was the only classical music station in the Bay Area. As evidence that the exemption was in the public interest, it introduced a survey of its listeners showing that they strongly supported continued simulcasting, especially since they liked to listen both at home and in their cars. Further, KKHI argued that the costs of compliance would be prohibitive and that it had the exclusive right to decide what programming to offer its listeners without the FCC's interference. It made an additional argument on procedural grounds, that the commission should have at least held a hearing before denying the exemption application.
The circuit's chief judge, David L. Bazelon, was chosen for the panel that would hear the case. With him were E. Barrett Prettyman, a former chief judge of the court now on senior status, and Warren Burger, chosen several years later to be Chief Justice of the Supreme Court. It heard oral arguments in the case in November.
In May 1968, the court handed down its decision. Unanimously, it held for the FCC. Burger wrote for the court that the commission had said that it would not consider exemptions based purely on a station's choice of programming alone, unless there was something exceptional about that programming as there was in the cases of WEVD and WHOM. Two other classical stations, New York's WQXR and Washington's WGMS, had applied for exemptions on the same grounds as KKHI and been denied, Burger noted, while KDFC, another San Francisco classical station, was granted its exemption since, unlike KKHI, it was daytime-only.
"The major premise on which the rule was postulated — wasteful frequency usage and loss of spectrum space", Burger continued, addressing the overreach argument, "was clearly the kind of judgment entrusted by Congress to the Commission." The court did not find that the requirement for 50% original programming on the FM station seriously limited the station's programming choices, since it could easily tape and rebroadcast content from either station later. Burger also noted that KKHI's economic concerns had indeed been taken into account when the commission granted the extension until April 1967.