The FCC yesterday eliminated rules regarding access to FM and TV broadcast antenna sites, thanks in part to a robust tower market. The agency said the rules no longer serve any practical purpose given the “significant broadcast infrastructure development” that has occurred since adopted 75 years ago.
Sections 73.239 and 73.635 of the Commission’s rules prohibit the grant or renewal of an FM or TV broadcast license “to any person who owns, leases, or controls a particular site which is peculiarly suitable” for such broadcasting in a particular area, if the site is not available for use by other such licensees, no other comparable site is available in the area, and the exclusive use of the site would unduly limit the number of such stations that can be licensed or unduly restrict competition among those stations.
The rules were adopted during a time when FM and TV broadcasting were emerging industries, and the need to preserve materials for the U.S. military effort in World War II had led the Commission to freeze new broadcast station construction. Since that time, the broadcast market has grown significantly with a corresponding increase in the number of available antenna sites. This is made possible, in part, by the ability to co-locate broadcasters and other providers at a single site and a mature independent communications tower industry that owns and leases tower space to broadcasters.
In 2019, the Commission asked for input on whether the rules should be modified or eliminated. The agency also asked to what extent broadcasters own their own towers and what extent eliminating the rules would have on the broadcast tower landscape. Only two members of the public filed comments.
The agency concluded eliminating the rules is appropriate for four reasons. First, the apparent rationale for these rules—promoting a fledgling broadcast industry and preserving scarce industrial resources—no longer applies in today’s marketplace. Also, the current trend toward co-location of communications towers on antenna farms and the widespread availability of tower capacity for lease from numerous tower companies make it less likely that a suitable site will be wholly unavailable to a broadcaster seeking to serve a community.
Second, publicly available information shows that the communications tower market is dominated by entities that do not hold broadcast licenses, and there is no indication that their broadcast lessees have the intent or ability to restrict these tower owners from denying access to the broadcast lessees’ competitors. Third, the current rules apply only in extremely limited circumstances, and no broadcaster claims that these rules are needed to secure access to suitable sites.
Finally, the FCC concluded that keeping rules that have little applicability to the broadcast landscape is a waste of Commission time and resources. “Simply put, based on our expert judgment and the lack of record received, we find that these 75-year-old rules have outlived their utility,” stated the agency.
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