Authorizing Permissive Use of the “Next Generation” Broadcast Television Standard
| Published date | 17 July 2020 |
| Citation | 85 FR 43478 |
| Record Number | 2020-13837 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 85 Issue 138 (Friday, July 17, 2020)
[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Rules and Regulations]
[Pages 43478-43492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13837]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[GN Docket No. 16-142; FCC 20-72; FRS 16880]
Authorizing Permissive Use of the ``Next Generation'' Broadcast
Television Standard
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission resolves the pending issues
in this proceeding that authorized broadcasters to use ATSC 3.0, the
``Next Generation'' broadcast television (Next Gen TV) transmission
standard. First, the FCC addresses the three issues raised in the
Further Notice of Proposed Rulemaking that was issued in conjunction
with the Next Gen TV Report and Order. Specifically, we provide
additional guidance to broadcasters deploying Next Gen TV that wish to
receive a waiver of our local simulcasting rules, decline to permit at
this time the use of vacant broadcast channels for purposes of Next Gen
TV deployment, and clarify the ``significantly viewed'' status of Next
Gen TV stations. Second, we dismiss and, on alternative and independent
grounds, deny the two petitions for reconsideration of the Next Gen TV
Report and Order.
DATES: Effective August 17, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Evan Baranoff, [email protected], of the Media Bureau, Policy
Division, (202) 418-7142. Direct press inquiries to Janice Wise at
(202) 418-8165.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order and Order on Reconsideration, FCC 20-72, adopted on
June 3, 2020 and released on June 16, 2020. The full text of this
document is available electronically via the FCC's Electronic Document
Management System (EDOCS) website at https://www.fcc.gov/edocs or via
the FCC's Electronic Comment Filing System (ECFS) website at https://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.) This document is also available
for public inspection and copying during regular business hours in the
FCC Reference Information Center, which is located in Room CY-A257 at
FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The
Reference Information Center is open to the public Monday through
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30
a.m. The complete text may be purchased from the Commission's copy
contractor, 445 12th Street, SW, Room CY-B402, Washington, DC 20554.
Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Synopsis
I. Introduction
1. In this Second Report and Order and Order on Reconsideration, we
resolve the pending issues in this proceeding that authorized
broadcasters to use the ``Next Generation'' broadcast television (Next
Gen TV) transmission standard. First, we address the three issues
raised in the Further Notice of Proposed Rulemaking that was issued in
conjunction with the Next Gen TV Report and Order. Specifically, we
provide additional guidance to broadcasters deploying Next Gen TV that
wish to receive a waiver of our local simulcasting rules, decline to
permit at this time the use of vacant broadcast channels for purposes
of Next Gen TV deployment, and clarify the
[[Page 43479]]
``significantly viewed'' status of Next Gen TV stations. Second, we
dismiss and, on alternative and independent grounds, deny the two
petitions for reconsideration of the Next Gen TV Report and Order.
II. Background
2. In the Next Gen TV Report and Order, the Commission authorized
television broadcasters to use the Next Gen TV transmission standard,
also called ``ATSC 3.0'' or ``3.0,'' on a voluntary, market-driven
basis. ATSC 3.0 is the TV transmission standard developed by the
Advanced Television Systems Committee as the world's first internet
Protocol (IP)-based broadcast transmission platform. The Commission
determined in the Next Gen TV Report and Order that broadcasters
deploying ATSC 3.0 generally must continue to deliver current-
generation digital television (DTV) service, using the ATSC 1.0
transmission standard, also called ``ATSC 1.0'' or ``1.0,'' to their
viewers through local simulcasting. Specifically, the Commission
required full power and Class A television stations (Class A TV)
deploying ATSC 3.0 service to simulcast the primary video programming
stream of their ATSC 3.0 channels in an ATSC 1.0 format.
3. In the Next Gen TV Report and Order, the Commission determined
that the local simulcasting requirement is crucial to the deployment of
Next Gen TV service in order to minimize viewer disruption. This is
because the Next Gen TV standard is not backward-compatible with
existing TV sets or receivers, which have only ATSC 1.0 and analog
tuners. This means that consumers will not be able to view ATSC 3.0
transmissions on their existing televisions without additional
equipment. Thus, it is critical that Next Gen TV broadcasters continue
to provide service using the current ATSC 1.0 standard to deliver DTV
service while the marketplace adopts devices compatible with the new
3.0 transmission standard in order to avoid either forcing viewers to
acquire new equipment or depriving them of television service. Because
a TV station cannot, as a technical matter, simultaneously broadcast in
both 1.0 and 3.0 format from the same facility on the same physical
channel, local simulcasting will be effectuated through voluntary
partnerships that broadcasters seeking to provide Next Gen TV service
enter into with other broadcasters in their local markets. A Next Gen
TV broadcaster must partner with another television station (i.e., a
temporary ``host'' station) in its local market to either: (1) Air an
ATSC 3.0 channel at the temporary host's facility, while using its
original facility to continue to provide an ATSC 1.0 simulcast channel,
or (2) air an ATSC 1.0 simulcast channel at the temporary host's
facility, while converting its original facility to the ATSC 3.0
standard in order to provide a 3.0 channel.
4. The Commission established a process for considering
applications to deploy ATSC 3.0 service, which included, among other
requirements, establishing coverage requirements for a Next Gen TV
station's ATSC 1.0 simulcast signal. The Commission's ATSC 1.0
simulcast coverage requirement sought to minimize disruption to viewers
resulting from the voluntary deployment of ATSC 3.0 by recognizing that
if a station moves its ATSC 1.0 signal to a partner simulcast host
station with a different transmitter location, some existing over-the-
air (OTA) viewers may no longer be able to receive the 1.0 signal.
Among other obligations, the Commission required the Next Gen TV
station to select a partner 1.0 simulcast host station that is assigned
to its same designated market area (DMA) and from which it would
continue to provide ATSC 1.0 simulcast service to its entire community
of license.
5. While the Commission's rules require that full power and Class A
TV stations that convert their existing facility to ATSC 3.0 provide an
ATSC 1.0 simulcast signal that covers a station's entire community of
license, the Commission recognized that in certain circumstances such
an arrangement may not be viable. Accordingly, the Commission
established a waiver standard for the ATSC 1.0 simulcast requirement in
order to facilitate the voluntary deployment of ATSC 3.0 service.
Specifically, the Commission stated that it would favor requests for
waiver of the obligation to provide ATSC 1.0 simulcast service if the
station can demonstrate both that: (1) It has ``no viable local
simulcasting partner'' in its market; and (2) it will ``make reasonable
efforts to preserve 1.0 service to existing viewers in its community of
license and/or otherwise minimize the impact on such viewers (for
example, by providing free or low cost ATSC 3.0 converters to
viewers).'' The Commission stated that it would consider waiver
requests from full power and Class A TV stations to transition directly
from ATSC 1.0 to ATSC 3.0 service on the station's existing facility
without providing an ATSC 1.0 simulcast service at all. Alternatively,
a station may request a waiver of the ATSC 1.0 simulcast requirement so
it can air an ATSC 1.0 simulcast signal from a partner simulcast host
that does not cover all or a portion of the station's community of
license or can provide only a lower signal threshold over the station's
community of license than that required by the rules. Thus, a station
may seek a waiver to either provide no 1.0 simulcast service to its
community of license or partial 1.0 simulcast service to its community
of license. In both situations, a waiver of the community of license
coverage requirement in 47 CFR 73.3801(c) is required and the waiver
standard set forth in the Next Gen TV Report and Order applies.
6. In the Next Gen TV Further Notice, the Commission sought comment
on three topics relating to local simulcasting rules. First, it sought
further comment on issues related to waivers of, and exemptions from,
the local simulcasting requirement. Specifically, the Commission sought
comment on whether further guidance should be provided about the
circumstances in which it would grant such a waiver, including how to
define whether a station has ``no viable local simulcasting partner''
and whether a station has taken ``reasonable efforts to preserve
service and/or minimize impact on viewers.'' Second, the Commission
sought further comment on whether to let full power broadcasters use
channels in the television broadcast band that are vacant to facilitate
the transition to ATSC 3.0. Third, the Commission tentatively concluded
that local simulcasting should not change the ``significantly viewed
status'' of a Next Gen TV station for purposes of determining MVPD
carriage and sought comment on that conclusion.
7. The Commission received 19 comments and eight reply comments in
response to the Next Gen TV Further Notice. Broadcaster commenters
again urged the Commission to continue to provide broadcasters with
``flexibility'' to facilitate their deployment of ATSC 3.0 service,
such as through waivers of, and/or additional exemptions from, the
local simulcasting rules and by permitting broadcasters to temporarily
use vacant channels. Meanwhile, MVPD commenters urged the Commission to
exercise restraint in issuing waivers of, or granting additional
exemptions from, the local simulcasting rules. And public interest
groups, white space proponents, and NCTA opposed the use of vacant
channels as temporary transition channels by broadcasters.
8. The Commission also received two petitions for reconsideration
of the Next Gen TV Report and Order: One filed by
[[Page 43480]]
the American Television Alliance (ATVA) and the other filed by NCTA--
The internet & Television Association (NCTA). NCTA and ATVA seek
reconsideration of various aspects of the local simulcasting rules, as
well as the Commission's decisions concerning voluntary carriage of
ATSC 3.0 signals through retransmission consent, patent licensing, and
the sunset of the A/322 standard. We received eight oppositions to
these petitions and three replies to the oppositions.
III. Second Report and Order
9. In this Second Report and Order, we provide guidance on how
Commission staff will evaluate petitions for waiver of our local
simulcasting rules. In addition, we decline at this time to permit
broadcasters to use vacant in-band channels for purposes of voluntary
ATSC 3.0 deployment. Finally, we adopt the Commission's tentative
conclusion that the ``significantly viewed'' status of a Next Gen TV
station will not change if it moves its ATSC 1.0 simulcast channel to a
host facility.
A. Local Simulcasting Waivers and Exemptions
10. We affirm and clarify the local simulcasting waiver standard
adopted in the Next Gen TV Report and Order. As explained below, we
will presume that a station satisfies the first element of our waiver
standard, which is that it has no ``viable simulcasting partner,'' if
it has fewer than three potential simulcasting partners within its DMA
that can cover its entire community of license. To satisfy the second
part of our waiver standard, which is to provide ``reasonable efforts
to preserve 1.0 service,'' we will look favorably on waiver applicants
that take steps to ensure their viewers have the ability to continue
watching the station. For example, waiver applicants may provide, upon
request, free or low-cost ATSC 3.0 converter devices to over-the-air
viewers within the station's community of license who otherwise no
longer would be able to receive the station's 1.0 signal over the air
as a result of the station's conversion to ATSC 3.0.\1\ Stations
choosing to provide such devices will be expected to inform viewers
about the availability of such free or low-cost ATSC 3.0 converter
devices and how to request or obtain such equipment. In addition, we
decline to adopt a blanket exemption from the local simulcasting
requirement for noncommercial educational (NCE) or Class A TV stations,
preferring instead to rely on our waiver standard to afford these
stations with any additional flexibility. Finally, we clarify that the
Bureau has delegated authority to consider requests for waivers of the
local simulcasting requirement and, consistent with the timing for
reviewing non-expedited applications seeking authorization to deploy
ATSC 3.0, the Bureau generally will process applications with waiver
requests within 60 business days after giving public notice of the
waiver request. Waiver requests that comply with the criteria as
explained in this Order will be viewed favorably.
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\1\ Generally, we expect that a station seeking a waiver of the
community of license coverage requirement will not be able to
satisfy the standard for expedited processing, which requires a
station to provide ATSC 1.0 simulcast service to at least 95 percent
of the predicted population within the station's original noise
limited service contour (NLSC). Thus, we remind prospective waiver
applicants that a station that needs a waiver of the community of
license coverage requirement will also need to make the showing
required for non-expedited applications established by the Next Gen
TV Report and Order, which includes providing information about what
steps, if any, the station plans to take to minimize the impact of
the service loss Accordingly, as a practical matter, we expect that
a station choosing to provide ATSC 3.0 converter devices as a means
to minimize the impact of not simulcasting on viewers will choose to
provide such devices throughout its entire NLSC.
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11. We recognize that some stations, such as public television and
other NCE stations, Class A TV stations, and stations in small markets
or in rural, remote, and isolated areas, may face unique challenges in
securing local simulcasting partners. We seek to provide such stations
with greater flexibility to deploy ATSC 3.0 service, provided they take
steps to protect their viewers from the potential loss of ATSC 1.0
service resulting from a waiver. With these principles in mind, we
provide, below, additional guidance on the waiver standard adopted in
the Next Gen TV Report and Order.
1. ``No Viable Local Simulcasting Partner''
12. With respect to the first prong of our waiver test, we will
presume that a full power Next Gen TV station has ``no viable local
simulcasting partner'' if it has fewer than three (i.e., zero to two)
potential full power simulcasting partners in the same DMA that can
cover its entire community of license. If a full power station seeking
a waiver is found to have fewer than three full power stations in its
DMA that can meet the local simulcasting coverage requirements in 47
CFR 73.3801(c), then the station will receive a presumption that it
meets the ``no viable local simulcasting partner'' prong of the waiver
standard.\2\ On the other hand, we will presume that full power
stations with at least three potential simulcast partners have viable
simulcasting partners and, thus, are not eligible for a waiver of 47
CFR 73.3801(c), absent compelling circumstances.
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\2\ Commission staff estimates that, initially, about 8 percent
of NCE stations and about 5 percent of commercial stations will be
able to meet this threshold. This estimate was determined using LMS
data. Staff calculated NLSCs using TVStudy for stations remaining
on-air following the Incentive Auction. For each station under the
test, the boundaries of the community of license were determined by
matching the community to a Census Place or Census Designated Place.
The number of viable sharing partners was determined by counting the
number of other stations in the same DMA as the station under the
test whose NLSC completely covered the boundaries of the community
of license.
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13. We adopt this criteria based on the proposals of several
commenters, including the National Association of Broadcasters (NAB)
and the joint comments of Public Broadcasting Service (PBS),
Corporation for Public Broadcasting (CPB), and America's Public
Television Stations (APTS), collectively ``PTV.'' Adopting this
presumption will provide stakeholders increased predictability
regarding what stations may be eligible for a waiver. In adopting a
threshold of fewer than three potential partners, we recognize that not
all stations will have an interest in serving as a 1.0 simulcast host,
and we avoid the need for a broadcast station to demonstrate
individually to the Commission that no station is willing to be its
simulcast partner. We also find that the threshold of fewer than three
potential simulcasting partners will provide transitioning stations
with a reasonable opportunity to find suitable simulcast partners.\3\
At the same time, the threshold will generally limit waiver relief to
stations in rural, remote, and isolated areas--those stations that we
believe will face the most significant challenges in finding local
simulcasting partners.\4\ Consistent with NAB's proposal, we will
consider only full power stations in our calculation of available 1.0
simulcast partners in considering a waiver request submitted by a full
power station, because Class A TV and LPTV stations do not cover
comparable service areas and LPTV
[[Page 43481]]
stations constitute a secondary service that does not receive the same
interference protection afforded to full power stations.\5\
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\3\ We agree with NAB's reasoning that ``[i]f there are only one
or two other stations in a market, a station that is eager to move
forward now to improve its service may be unable to find a willing
negotiating partner. If there are at least three other full power
stations in the market, however, a transitioning station would be
assured of having at least some possibility of moving forward even
if one or two of those stations was not interested in a partnership
at the time.''
\4\ The record shows that stations in rural, remote, and
isolated areas most merit a waiver of the local simulcasting
requirement.
\5\ We also note that a review of available data by Commission
staff suggests that limiting potential partners to only full power
stations (i.e., excluding Class A TV stations) resulted in only a
very slight increase in the number of full power stations that would
be able to demonstrate ``no viable local simulcasting partner.''
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14. We prefer the threshold approach of fewer than three potential
partners to ONE Media's certification proposal, which would allow a
station simply to certify ``that it has contacted all technically
viable prospective partners and been rejected, or has not been able to
make sufficient progress in negotiations, despite good faith efforts to
do so.'' We find that our objective approach is more administratively
efficient as it is readily demonstrable. Thus, we reject the
certification proposal as an overly subjective standard that could
provide opportunities for stations to overuse or abuse the waiver
process. We note that the objective threshold approach also avoids
having the Commission ``engage in qualitative market-by-market
evaluations of simulcasting plans,'' which was a key concern of ONE
Media. Given the difficulties associated with persuading another
station in the DMA to relinquish its multicast capabilities to permit a
competing station to deploy ATSC 3.0 by using the host station's
facilities for its ATSC 1.0 simulcast, and the challenges associated
with negotiating the terms of an agreement to do so, we believe the
record demonstrates that it is unlikely for a station to be able to
reach such an agreement with only one or two candidates available to do
so. For the reasons stated above, we believe that this bright line test
appropriately balances the likelihood of availability with the need to
avoid a large number of subjective evaluations of how diligent the
prospective ATSC 3.0 licensee has been in seeking out such
arrangements.
15. With respect to Class A TV stations, we will presume that a
Class A TV station has ``no viable local simulcasting partner'' if it
has fewer than three potential Class A TV simulcasting partners in the
same DMA that: (1) Can provide overlap to its protected contour (47 CFR
73.6010(c)); and (2) are not more than 30 miles from the reference
coordinates of the transitioning station's existing antenna
location.\6\ This is the same contour overlap standard that we apply in
our rule specifying permissible simulcast partners for Class A stations
seeking to provide ATSC 3.0 service. We recognize that many Class A TV
stations will be able to satisfy this prong of our waiver standard,
because few markets have three or more Class A stations. However, we
find that it is appropriate to create a lower bar for this class of
stations to make a showing under this prong as they likely face many of
the same challenges in finding a suitable simulcasting partner as do
LPTV stations.\7\ We will not consider LPTV/translator stations in our
calculation of available 1.0 simulcast partners for Class A TV stations
because they are secondary services that do not receive the same
interference protection afforded to Class A TV stations. Nevertheless,
Class A TV stations may choose to partner with LPTV/translator stations
as a means to mitigate the harm to viewers, and we encourage Class A TV
stations to do so.
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\6\ In other words, if a station seeking a waiver to transition
to ATSC 3.0 has only between zero and two stations in its market
that can meet the Commission's local simulcasting coverage
requirements in 47 CFR 73.6029(c), then the station will receive a
presumption that it meets the ``no viable local simulcasting
partner'' prong of the waiver standard. Commission staff estimates
that, initially, about 71 percent of Class A stations will be able
to meet this threshold.
\7\ For example, like LPTV stations, Class A TV stations may not
be attractive simulcast partners for full power stations because of
their lower power and coverage area, as well as their frequent
financial constraints. We note that, in any event, Class A TV
stations would still need to comply with the second prong of our
waiver standard.
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2. ``Reasonable Efforts'' To Preserve Service
16. In addition to demonstrating that a station lacks a viable
partner, successful waiver applicants must commit to take certain
affirmative steps to satisfy the second prong of our waiver test, by
demonstrating that it is making ``reasonable efforts'' to preserve 1.0
service and minimize impact on viewers. It is critical that stations
seeking a waiver of the simulcasting requirement can still achieve the
purpose of our simulcasting rule--ensuring that viewers can continue to
watch their channels during the transition period--through some
alternate means, in order to serve viewers that can no longer receive
the station over-the-air as a result of a station's conversion to ATSC
3.0.
17. The only alternative to local simulcasting raised or discussed
in the record that is consistent with the purpose of the rule is for
waiver applicants to provide free or low-cost ATSC 3.0 converter
devices to affected over-the-air viewers. We believe that providing
free or low-cost 3.0 converter devices could help ensure that viewers
in a station's coverage area can continue to watch a station over-the-
air. Below, in an effort to provide greater predictability to
prospective waiver applicants, we provide more detail about our
expectations in this regard. We note, however, that we will consider
other alternatives offered by waiver applicants on a case-by-case
basis, provided the waiver applicant can demonstrate that such
proposals would achieve the purpose of our local simulcasting rule.
18. We will look favorably on a waiver applicant choosing to
provide ATSC 3.0 converter devices at no cost or low cost to over-the-
air households located within its community of license which will no
longer receive the station's ATSC 1.0 signal as a means to minimize the
impact of not simulcasting on viewers. Although such equipment
distribution is not a requirement to obtain a waiver, we find that this
method provides one way to ensure that any disruption to viewers is
minimized to the fullest extent possible. In order for us to evaluate
this prong of our waiver standard, we expect waiver applicants will
explain in detail their plans for providing converter devices to
eligible viewers, including: (1) What types of devices they intend to
provide; (2) the cost, if any, that eligible viewers will be required
to pay in order to receive the device; (3) how the applicant intends to
inform viewers of the need for, and availability of, devices; and (4)
how viewers will be able to request and obtain the device. The Bureau
will consider a waiver applicant's plan for providing ATSC 3.0
converters to affected viewers on a case-by-case basis based on the
unique circumstances confronting the applicant.\8\
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\8\ We agree with PTV that ``[i]n situations where a station
does simulcast ATSC 1.0 programming to part of its community, it
should only be expected to provide free or low-cost converters to
viewers unable to receive the ATSC 1.0 signal.'' In addition, we
disagree with ATVA to the extent it contends that a waiver applicant
must simulcast to part of its community of license in order to be
eligible for a waiver. We do not require a waiver applicant to
simulcast to part of its community of license, but we find that a
waiver applicant that chooses to simulcast to part of its community
of license will have mitigated the harm to those viewers in such
area that receives the simulcast signal. For example, a waiver
applicant may mitigate harm to viewers by simulcasting to part of
its community of license and providing ATSC 3.0 converters to those
areas not reached by the partial simulcast, or it may mitigate harm
to viewers by providing ATSC 3.0 converters to its entire community
of license. We note that ATVA does appear to agree that the harm to
viewers can be mitigated by providing free or low-cost ATSC 3.0
converter devices to viewers, which we expect waiver applicants will
do to satisfy the second prong of our waiver test.
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19. To provide greater predictability to applicants that chose to
voluntarily provide ATSC 3.0 converters, the Bureau will look favorably
on a plan in
[[Page 43482]]
which the waiver applicant would provide affected over-the-air
households,\9\ upon request, with one ATSC 3.0 converter at no cost. To
the extent waiver applicants choose to charge a low cost to consumers
for devices, we will consider the particular circumstances surrounding
this charge, as well as the amount of the charge, on a case-by-case
basis. A waiver applicant choosing to provide ATSC 3.0 converter
devices would be expected to agree to provide an ATSC 3.0 converter
upon request to each affected over-the-air household for as long as it
operates pursuant to the waiver. A waiver applicant choosing to provide
ATSC 3.0 converter devices would also be expected to inform viewers how
they can obtain an ATSC 3.0 converter from the station.\10\ We note
that some waiver applicants choosing to provide ATSC 3.0 converter
devices may opt to partner with equipment manufacturers, retailers, and
even other broadcasters in their local markets in order to provide the
free or low-cost ATSC 3.0 converters. While nothing precludes waiver
applicants from partnering with third parties to establish their ATSC
3.0 converter programs, we remind applicants that they remain
ultimately responsible for complying with any commitments made as part
of their waiver requests. Finally, we remind waiver applicants that a
station that transitions directly to ATSC 3.0 must air daily Public
Service Announcements (PSAs) or crawls every day for 30 days prior to
the date that it will terminate ATSC 1.0 operations.\11\
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\9\ ``Affected over-the-air households'' are households
exclusively receiving television broadcast stations over the air
with an antenna. This definition does not include households that
subscribe to cable or satellite service.
\10\ For example, as part of this notice, we expect stations
choosing to provide ATSC 3.0 converter devices will provide
information on their websites about how viewers can request and
obtain any free or low-cost ATSC 3.0 converter devices that may be
offered.
\11\ Waiver applicants must provide all pertinent information to
viewers in their PSAs or crawls, including information about how
viewers can request and obtain any free or low-cost ATSC 3.0
converter devices to the extent such devices are offered.
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20. Broadcasters contend that, while the Commission should look
favorably on waiver applicants that offer to provide free or low-cost
ATSC 3.0 converters to viewers in their coverage area, the Commission
should not require broadcasters to provide free or low-cost ATSC 3.0
converters to viewers as a condition for a waiver of the local
simulcasting requirements. NAB asserts that requiring waiver applicants
to provide ATSC 3.0 converters ``would risk adding unreasonable costs''
on broadcasters, and ONE Media similarly contends that ``such a costly
requirement might deter innovation in some markets without
corresponding benefits.'' As stated above, we do not require waiver
applicants to provide ATSC 3.0 converter devices and will consider
alternative proposals that would achieve the purpose of the local
simulcasting rule. There were, however, no such alternatives mentioned
in the record. The Commission authorized the deployment of ATSC 3.0
service in a manner that is voluntary for all stakeholders. We find it
unreasonable for consumers to bear significant expense for these
devices or to be left without service in the event devices are not
readily available in the marketplace when a station wishes to deploy
ATSC 3.0 service. Broadcasters seeking waiver of the simulcasting
requirement must demonstrate that they have taken steps to minimize any
disruption to consumers. Broadcasters have stated in the record that
they expect 20 different television models from three manufacturers, to
be available with built-in ATSC 3.0 tuners as well as other types of
conversion equipment, such as adapters and gateway devices, by the end
of 2020. To the extent this comes to pass, we expect broadcasters will
have adequate access to ATSC 3.0 converter devices and other equipment
so that they can provide such equipment to their viewers in support of
any simulcasting waiver requests.\12\
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\12\ We disagree with ONE Media's further assertion that we
should not require a waiver applicant to provide ATSC 3.0 converter
devices if it is ``in a market that is already well-penetrated with
ATSC 3.0 devices and [has] arranged for all MVPDs to carry its
signal.'' If most viewers in a market already have ATSC 3.0 devices,
then it should not be overly burdensome for waiver applicants to
provide ATSC 3.0 converters to the remaining few viewers in the
market that do not. Further, carriage on all MVPDs in a market does
not mean that all viewers would have access to the Next Gen TV
station's signal unless they are a subscriber to MVPD service.
Requiring that a viewer subscribe to an MVPD service in order to
retain access to a station's free over-the-air signal would
unreasonably shift the burden of what is supposed to be a voluntary
transition onto viewers.
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21. We reject NCTA's argument that it is premature for us to
consider waivers of the local simulcasting requirement. Because our
waiver standard targets relief to stations in rural, remote, and
isolated areas and requires applicants to make ``reasonable efforts''
to preserve 1.0 service and minimize impact on viewers, we disagree
with NCTA that our waiver standard will undermine the purpose of the
local simulcasting rule.\13\ We find that viewers in small and rural
markets should have an opportunity to enjoy the benefits of ATSC 3.0
service as quickly as practicable and that stations lacking a simulcast
partner that wish to innovate and invest in ATSC 3.0 technology should
be afforded an opportunity to do so.
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\13\ We also find that our targeted waiver approach addresses
ATVA's concerns that waivers will not be sufficiently narrow to
address situations where stations cannot comply with the
simulcasting rules.
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22. NTCA--The Rural Broadband Association (NTCA) also expressed
concern that were the Commission to waive simulcasting requirements,
broadcasters may try to enforce their mandatory carriage rights with
respect to their ATSC 3.0 signals, potentially imposing significant
costs on cable operators. We clarify that stations that receive a
waiver of the local simulcasting rule are not allowed to assert
mandatory carriage rights for their ATSC 3.0 signals. In the Next Gen
TV Report and Order, the Commission stated that ``a Next Gen TV
broadcaster will not be able to exercise mandatory carriage rights with
respect to its 3.0 signal instead of its 1.0 signal, nor will it have
mandatory carriage rights even if its 3.0 signal is the only signal
being broadcast. In other words, under no circumstances will we
recognize mandatory carriage rights for 3.0 signals while the
Commission requires local simulcasting.'' We clarify that the reference
to ``while the Commission requires local simulcasting'' was intended to
refer to the time period during which the general simulcasting rule
remains in effect and was not meant to confer ATSC 3.0 carriage rights
to stations excused from the general rule. At this time, there are no
mandatory carriage rights for ATSC 3.0 signals.
23. In addition, NTCA expresses concern that stations which are
granted waivers and elect retransmission consent can and likely would
shift the costs of carrying ATSC 3.0 signals onto small and rural
MVPDs. More specifically, NTCA avers that, because small and rural
MVPDs generally rely on receiving broadcast signals over-the-air at
their headend (as fiber is generally not an option), these MVPDs would
have to upgrade their equipment to receive the signal of a 3.0 station
that is not simulcasting in order to continue to carry the station.
NTCA claims that, in such situations, broadcasters will have little
incentive to share in the cost of such upgrades. NTCA maintains that,
when considering a waiver request, the Bureau should consider the
impact on MVPDs and their subscribers, particularly in situations in
which such subscribers cannot receive any over-the-air broadcast
signals and rely solely on MVPD service to receive a station. The
Commission rejected suggestions that it should intervene in the
retransmission
[[Page 43483]]
consent process vis-[agrave]-vis ATSC 3.0 signals in the Next Gen TV
Report and Order, and in so doing, it decided that it was premature to
consider arguments that Next Gen TV broadcasters could use the
retransmission consent process to compel carriage of ATSC 3.0 signals
before consumer demand and market circumstances warrant. Nevertheless,
we expect waiver stations that are granted waivers of the simulcasting
requirements will actively coordinate and work cooperatively and in
good faith with all affected MVPDs to help ensure that MVPD subscribers
can continue to watch the station.
3. No Additional Simulcast Exemptions
24. We conclude that it is not necessary and would not serve the
public interest to grant exemptions to any additional classes of
stations at this time. In the Next Gen TV Further Notice, the
Commission sought comment on whether to exempt NCE and/or Class A TV
stations as a class from the local simulcasting requirement. Given the
flexibility afforded by our waiver standard, we decline to give NCE and
Class A TV stations a class-based exemption from our local simulcasting
requirement, as we did for LPTV/translator stations.\14\
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\14\ In this regard, we agree with ATVA that our targeted waiver
approach is more appropriate than a class-based exemption.
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25. As an initial matter, unlike LPTV/translator stations, NCE and
Class A TV stations are considered primary under the Commission's
rules. Primary television stations (primary stations) are treated
differently from secondary television stations (secondary stations) in
many respects under the rules. Among other things, primary stations are
afforded interference protection from other services and, in contrast
to secondary services like LPTV/translators, are not subject to
displacement by other primary licensees.\15\ In addition, primary
stations tend to carry programming more relied upon by viewers.\16\
Consequently, if we were to afford NCE, Class A TV, or any other class
of primary station a blanket exemption of the local simulcasting rule,
the potential adverse impact caused by service loss would be inherently
greater than it is for secondary classes of stations. We therefore find
it appropriate to afford NCE and Class A TV stations less flexibility
than secondary stations with respect to local simulcasting obligations.
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\15\ We note that secondary stations also do not have principal
community coverage obligations.
\16\ For example, we note that Class A TV stations are required
to broadcast a minimum of 18 hours per day and provide an average of
at least three hours per week of locally-produced programming each
quarter.
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26. In advocating for a blanket exemption from the local
simulcasting rules, public television commenters emphasize that they
are particularly likely to lack viable simulcasting partners because
they often are not sited near other stations in the market. We find
that our waiver standard, which is based on a proposal supported by
PTV,\17\ adequately addresses this concern by providing that any
station that lacks fewer than three potential partners presumptively
satisfies the ``no viable local simulcasting partner'' prong of our
waiver test. We find that our waiver standard will provide targeted
relief to NCE stations in rural or other isolated areas without risking
the loss of television service on which viewers currently rely. PTV
also contends that the Public Broadcasting Act of 1967 (PBA) creates a
statutory mandate for PTV stations ``to provide service to `all
citizens of the United States,' particularly `unserved and underserved
audiences' '' and, therefore, public television stations do not need a
simulcasting requirement because the PBA will ensure that public
television stations ``will only transition to the ATSC 3.0 standard
after ensuring that their viewers will not be left behind.'' However,
the sections of the PBA cited by PTV are not statutory mandates that
are binding on public television stations, but rather a Congressional
declaration of policy, and, in fact, we find that our waiver standard
will buttress this Congressional statement of policy by ensuring that
waivers are granted only in appropriate circumstances and that
reasonable efforts will be made to prevent loss of public television
service. We do not, however, find the Congressional statement of policy
in the PBA to be a rationale for providing additional regulatory relief
to NCE stations.\18\
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\17\ Although PTV would prefer an exemption for public
television stations, it indicated that it would support, in the
alternative, a presumptive waiver for such stations.
\18\ PTV also argues that ``public television stations have a
strong financial incentive for ensuring that viewers are able to
continue receiving their broadcast signals'' because ``public
television stations rely on direct financial support from viewers.''
We also do not find this argument grounds for additional regulatory
relief to public television stations. Our goal is to ensure viewers
are protected during the transition to ATSC 3.0 service. We see no
reason to treat viewers of full power public television stations
differently from other full power stations.
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27. Likewise, we find the waiver approach is more appropriate for
Class A TV stations than a class-based exemption. WatchTV states that
the Commission should exempt Class A TV stations ``because most of the
rationale behind the [simulcast requirement] does not apply to Class A
(TV) stations.'' We acknowledge that Class A TV stations--unlike most
other primary stations--are not generally carried by MVPDs, and thus
their only way to access viewers is via over-the-air reception.
Although we recognize they have incentives to maintain ATSC 1.0 service
without a mandate, we disagree with WatchTV that these marketplace
incentives justify a class-based exemption for Class A TV stations. By
virtue of their status, Class A TV stations are required to provide
locally-produced programming that is relied upon by viewers. We are
reluctant to allow Class A TV stations to stop providing such service
in ATSC 1.0 without a public interest showing. Thus, while most Class A
TV waiver applicants will presumptively meet the first prong of the
waiver standard, Class A TV waiver applicants will be required under
the second prong of the waiver standard to minimize the impact on
viewers, ensuring that viewers can maintain access to the locally-
produced programming offered by these stations.\19\
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\19\ We note that WatchTV has indicated its ability to provide
low-cost 3.0 devices to viewers, suggesting that the waiver standard
would not prove too onerous for Class A stations. WatchTV
``contemplates being able to acquire dongles for as little as $10 in
quantity, so that a station may sell them for a nominal amount or
even simply give them away to viewers as a promotion.''
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4. Waiver Processing
28. We clarify that the Media Bureau has delegated authority to
consider requests for waiver of the local simulcasting requirement and
that waiver requests should be made when filing a Next Gen TV license
application. Consistent with the timing for reviewing non-expedited
applications seeking authorization to deploy ATSC 3.0, we expect the
Bureau will process applications with waiver requests within 60
business days after giving public notice of the waiver request.\20\
Some broadcaster commenters have requested much faster processing times
for waiver requests, but such timeframes would provide staff
insufficient time to verify that deviation from the established rule is
warranted and in the public interest. So long as
[[Page 43484]]
information provided by waiver applicants is complete, we expect staff
will be able to process the applications within the 60 business-day
time period.
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\20\ As explained above, a non-expedited applicant refers to a
Next Gen TV station whose application does not propose to provide
ATSC 1.0 simulcast service to at least 95 percent of the predicted
population within the station's original noise limited service
contour (NLSC) and, thus, would not qualify for ``expedited
processing'' for its application. A non-expedited applicant must
provide a more robust public interest showing with its application
and will be considered on a case-by-case basis.
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B. Temporary Use of Vacant Channels
29. We decline to adopt new rules at this time to authorize full
power broadcast licensees to use available or vacant channels in the
television band for purposes of their voluntary ATSC 3.0 deployment.
The Commission declined to authorize such use in the Next Gen TV Report
and Order, but sought additional comment on this issue in the Next Gen
TV Further Notice. In particular, the Commission sought comment on ONE
Media's request that, in markets where such vacant channels are
available, the Commission should allow full power broadcasters to use
these channels as ``dedicated transition channels to ensure maximum
continuity of service, just as it did during the transition from analog
to digital.'' In support of this proposal, ONE Media and other
broadcaster commenters argue that allowing Next Gen broadcasters to use
vacant channels would facilitate the transition to ATSC 3.0 and
``minimize consumer disruption and preserve service to viewers.'' They
contend that television band spectrum is reserved for licensed
broadcast use and that existing broadcasters should be given priority
to use vacant channels as temporary transition channels in the
band.\21\
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\21\ In addition to priority over unlicensed uses, ONE Media
advocates giving existing broadcasters priority over applicants for
new television station licenses as well as over secondary users,
including displacement applications of LPTV and TV translator
stations.
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30. We find that it is premature to consider allowing broadcasters
to use vacant channels as temporary transition channels to deploy ATSC
3.0 service. At this time, deployment of ATSC 3.0 service is voluntary,
and there is no certainty if or when it will replace ATSC 1.0 service;
rather, it will be adopted by stakeholders based on marketplace
considerations. For this reason, we reject ONE Media's comparison to
the DTV transition in which a second channel was provided to most
broadcasters in order to accomplish a mandatory transition from analog
to digital service. We also agree with MVPD providers, wireless
microphone interests, and proponents of white space devices that
authorizing widespread use of vacant channels as dedicated transition
channels would be inconsistent with the premise of the broadcasters'
Next Gen TV Petition, which stated that local simulcasting would be the
``core of the voluntary, market-driven implementation of ATSC 3.0'' and
that no additional spectrum would be needed for the voluntary
deployment of ATSC 3.0 service.\22\ Further, the fact that no
additional spectrum would be required for the voluntary use of ATSC 3.0
was a key consideration in the Next Gen TV Report and Order. Allowing
widespread use of vacant channels as transition channels would likely
discourage reliance on local simulcasting arrangements, which are
intended to accomplish the voluntary deployment of ATSC 3.0 service in
a spectrally efficient manner.
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\22\ The Next Gen TV Petition stated that it ``does not ask the
Commission to give broadcasters additional spectrum to roll out Next
Generation TV and does not seek any changes to the current DTV
standard. Instead, broadcasters will use market-based solutions to
introduce this enhanced capability on existing spectrum while not
disenfranchising viewers using ATSC 1.0 equipment, and consumer
electronics manufacturers will implement the new standard in
response to market demands rather than regulatory mandates.''
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31. Moreover, any benefits of allowing broadcasters to use vacant
channels as temporary transition channels appear outweighed by the
costs to other stakeholders. Broadcasters maintain that vacant channel
use may be particularly helpful to stations in rural, remote, and
isolated areas. However, such broadcasters already have significant
flexibility in complying with our local simulcasting rules by virtue of
the waiver standard. Further, we are skeptical that rural, remote, and
isolated broadcasters would even want to incur the costs of
constructing and operating a second facility on a vacant channel.
Instead, such broadcasters may find partnering with LPTV/translator
stations, which are exempt from the simulcasting requirement, to be a
more affordable and practical option for their initial deployment of
ATSC 3.0 service.
32. In addition, we are not persuaded that the benefits of allowing
broadcasters to use vacant channels as temporary transition channels
outweigh the potential costs and harms to other stakeholders that
operate in the band. Authorizing widespread use of vacant channels by
broadcasters could have a significant adverse impact on these other
stakeholders. First, permitting vacant channel use at this time, even
for only 3.0 service, could have negative effects on the incentive
auction reorganization of spectrum (repacking). The resources needed to
use vacant channels for such purposes could strain resources needed to
support the construction of facilities on channels assigned in the
post-incentive auction repacking, including transitioning stations and
stations moving from interim to permanent facilities post-transition.
Second, permitting widespread vacant channel use could adversely impact
LPTV and TV translator stations, particularly those displaced by the
post-Incentive Auction repacking process that are currently receiving
federal funds to modify or construct new facilities on channels for
which they hold construction permits. Although we recognize that full
power stations are primary and LPTV and TV translator stations are not,
during this repacking transition we strive to be good stewards in
overseeing efficient use of federal reimbursement funds. By opting not
to allow full power vacant channel use at this time, we reduce the
potential of inefficiently allocated reimbursement expenses to
relocating LPTV stations by further displacing those stations already
receiving federal funds. Finally, permitting widespread vacant channel
use for ATSC 1.0 simulcasting could impose costs on an MVPD that may
need to receive a signal from a new ATSC 1.0 facility that it does not
currently carry. To the extent broadcasters were to move from one
vacant channel to another, MVPDs could incur such expenses multiple
times with respect to a single station.\23\
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\23\ We recognize that parties supporting use of vacant channels
for unlicensed white space operations and wireless microphone
operations also expressed concern about the potential adverse impact
on such uses. In response, broadcasters contend that white space use
should yield to broadcast operations in the television band. Because
we decline on other grounds to adopt the proposal to allow full
power vacant channel use, we do not address that issue here.
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33. Accordingly, we decline to allow the use of vacant channels for
the ATSC 3.0 transition at this time. If warranted by market conditions
in the future, we may revisit the need for permitting broadcasters to
use vacant channels as transition channels.
C. ``Significantly Viewed'' Status of Next Gen TV Stations
34. We adopt our tentative conclusion that the significantly viewed
status of a Next Gen TV station should not change if it moves its ATSC
1.0 simulcast channel to a temporary host facility. All commenters on
this issue support this conclusion. Accordingly, a commercial
television station that relocates its ATSC 1.0 simulcast channel cannot
seek to gain significantly viewed status in new communities or counties
and such station cannot lose significantly viewed status in communities
or counties for which it qualified prior to the move of its ATSC 1.0
simulcast channel.
35. Significantly viewed stations are commercial television
stations that the Commission has determined have
[[Page 43485]]
``significant'' over-the-air (i.e., non-cable and non-satellite)
viewing and are thus treated as local stations in certain respects with
regard to a particular community in another television market.
Significantly viewed status allows the significantly viewed station to
be (1) carried by a satellite carrier in such community in the other
market; (2) carried in such community by cable and satellite operators
at the reduced copyright payment applicable to local (in-market)
stations; and (3) exempt in such community from another station's
assertion of its network non-duplication or syndicated exclusivity
rights. A station that varies its signal strength or changes its
location as a result of moving its ATSC 1.0 signal to a simulcast
partner may raise the question of how this change affects its status as
``significantly viewed'' in a certain community or county under 47 CFR
76.5(i) and 76.54.
36. We agree with MVPDs and broadcasters that we should maintain
the status quo in the significantly viewed context with respect to ATSC
1.0 simulcast signals and thereby avoid disruptions to the carriage
obligations of MVPDs and the carriage rights of broadcasters, and note
that no commenter opposes this approach. Any changes in significantly
viewed status due to local simulcasting would be temporary, and our
approach will avoid disruptions to cable and satellite television
viewers who have come to rely on such signals. This approach will not
impose added mandatory carriage burdens on MVPDs and avoids burdening
MVPDs with numerous changes to their carriage obligations. We note that
significantly viewed status does not confer mandatory carriage rights
to the station, but rather only allows carriage of the station via
retransmission consent. Thus, maintaining the status quo with respect
to eligibility for significantly viewed carriage presents no mandatory
carriage burdens on MVPDs. We also conclude that expansion of
eligibility for significantly viewed carriage due to the relocation of
the ATSC 1.0 simulcast signal would not be consistent with the purpose
of local simulcasting, which is intended to serve the goal of
maintaining existing television service to viewers within the station's
original coverage area, not expanding service into new areas.
37. Although our approach here differs from how we addressed this
issue in the channel sharing context, we find that it is appropriate to
treat significantly viewed status differently in these two contexts. In
the Incentive Auction Report and Order, the Commission found that
because significantly viewed status is largely a function of signal
availability, a station moving to a new channel should lose its status
at the relinquished location. But unlike in the channel sharing
context, Next Gen TV broadcasters are not relinquishing their original
channel. While they are relocating their ATSC 1.0 signal to a simulcast
partner, they will continue to operate on their existing channel in
ATSC 3.0 and will ultimately return to operating solely on their
existing channel when the local simulcasting period ends. Moreover, a
Next Gen TV broadcaster will continue to reach the communities or
counties in which it is significantly viewed with an ATSC 3.0 over-the-
air signal during the period in which it is simulcasting.
IV. Order On Reconsideration
38. In this Order on Reconsideration, we dismiss and, on
alternative and independent grounds, deny the NCTA and ATVA petitions
for reconsideration.\24\ NCTA and ATVA seek reconsideration of various
aspects of the local simulcasting rules, as well as the Commission's
decisions concerning voluntary carriage of ATSC 3.0 signals through
retransmission consent, patent licensing, and the sunset of the A/322
standard.\25\ All of the requests raised in the petitions have been
considered and rejected already by the Commission in the underlying
order. As discussed below, the NCTA and ATVA petitions repeat issues
that commenters, including NCTA and ATVA, raised earlier in the
proceeding, and that we fully considered and rejected in the Next Gen
TV Report and Order. Further, we disagree that these petitions raise
any errors or omissions that warrant reconsideration. (The Bureau has
the authority to dismiss petitions for reconsideration that ``fail to
identify any material error, omission, or reason warranting
reconsideration,'', or which ``rely on arguments that have been fully
considered and rejected by the Commission within the same proceeding.''
Because we also address the petitions on the merits, we have no
occasion to rely on that delegation of authority here.)
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\24\ Pursuant to Commission policy, petitions for
reconsideration are not to be used merely to reargue points
previously advanced and rejected.
\25\ Specifically, ATVA seeks reconsideration of three issues,
including: (1) The Commission's rejection of ATVA's proposal to
require separate negotiations for first-time carriage of ATSC 3.0
signals; (2) the Commission's exemption from the simulcasting
requirement for low power and TV translator stations; and (3) the
Commission's decision not to require stations to provide prior
notice to viewers and MVPDs before changing their signal formats on
their ATSC 1.0 simulcasts. NCTA seeks reconsideration of five
issues, including: (1) The Commission's decision to sunset after
five years the ``substantially similar'' requirement; (2) the
Commission's decision to sunset after five years the requirement
that a Next Gen TV broadcaster's primary video programming stream
adheres to the ATSC A/322 standard; (3) the Commission's decision
not to require Next Gen TV broadcasters to simulcast ATSC 1.0
signals in high definition (HD) format to the extent they are
currently broadcasting such signals in HD; (4) the Commission's
decision not to prohibit broadcasters from using retransmission
consent negotiations to obtain carriage of their ATSC 3.0 signals by
withholding the ATSC 1.0 signal; and (5) the Commission's decision
not to require that patents relevant to the ATSC 3.0 standard must
be licensed on a reasonable and non-discriminatory (RAND) basis.
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A. Retention of Sunset Dates
1. Sunset of ``Substantially Similar'' Requirement
39. We dismiss and, on alternative and independent grounds, deny
NCTA's request to reconsider the five-year sunset of the
``substantially similar'' requirement. While we retain the July 17,
2023 sunset date for this rule, approximately one year before the
requirement is set to expire, we will seek comment on whether it should
be extended based on marketplace conditions at that time.\26\
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\26\ We note that, while the Commission stated that the
``substantially similar'' requirement would expire five years after
its effective date, the Commission had inadvertently omitted to
codify the sunset date in the rule. We take this opportunity to
correct this oversight and amend our rules to reflect the sunset
date.
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40. In the Next Gen TV Report and Order, the Commission required
that the programming aired on a Next Gen TV station's ATSC 1.0
simulcast channel be ``substantially similar'' to that of the primary
video programming stream on the ATSC 3.0 channel. As the Commission
explained, the programming must be the same, except for programming
features that are based on the enhanced capabilities of ATSC 3.0,
advertisements, and promotions for upcoming programs. The Commission
stated that this approach ``will help ensure that viewers do not lose
access to the broadcast programming they receive today, while still
providing flexibility for broadcasters to innovate and experiment with
new, innovative programming features using Next Gen TV technology.''
The Commission decided, however, that the substantially similar
requirement would sunset five years from its effective date absent
further action by the Commission to extend it. In this regard, the
Commission concluded that, while ``this [substantially similar]
requirement is necessary in the early stages of ATSC 3.0 deployment, it
could unnecessarily impede Next Gen TV programming innovations as the
deployment of ATSC
[[Page 43486]]
3.0 progresses.'' The Commission further stated that it ``intend[ed] to
monitor the ATSC 3.0 marketplace,'' and would ``extend the
substantially similar requirement if necessary.'' The substantially
similar rule took effect July 17, 2018, so it will expire on July 17,
2023, unless extended by the Commission.
41. In its petition, NCTA repeats its and other commenters' earlier
opposition in this proceeding to an automatic sunset of the
substantially similar requirement. NCTA contends that the Commission's
decision to sunset the substantially similar requirement was
``arbitrary'' and ``has no basis in the record.'' \27\ NCTA further
asserts that, ``[g]iven the current state of the marketplace, the
rational policy would be for the Commission to monitor the roll-out of
ATSC 3.0 and maintain the substantially similar requirement until the
use of ATSC 3.0 is further along'' before ``determin[ing] the
appropriate sunset.''
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\27\ NCTA claims in its reply to oppositions that ``the
Commission did not seek comment on the notion that the
[substantially similar] requirement would sunset five years after
its adoption.'' In the Next Gen TV NPRM, the Commission sought
comment on whether ``a `simulcast' means a stream with identical
content to the video programming aired on the originating station's
primary ATSC 3.0 stream'' and further asked ``[i]f the simulcast
content will not be identical to the originating station's primary
video programming stream, . . . explain the reasons for any
deviations in content and/or format (i.e., high definition (HD)
versus SD) and the impact of such deviations on television viewers
and the regulatory implications.'' In response, broadcasters opposed
an identical content requirement. Persuaded by broadcasters'
comments, the Commission opted against an identical content
requirement and instead established the ``substantially similar''
requirement and determined that such requirement appeared necessary
only in the early stages of ATSC 3.0 deployment. We find that the
NPRM provided adequate notice that the Commission was considering
whether (or not) to require identical content and the length of time
any such requirement might be necessary.
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42. The Commission fully considered this issue in the Next Gen TV
Report and Order and decided to establish a sunset for the
substantially similar requirement. Because NCTA repeats arguments that
have already been considered, we dismiss NCTA's Petition on this issue.
On alternative and independent grounds, we deny NCTA's Petition on this
issue because we disagree that the Commission erred. We continue to
believe a sunset date is appropriate and, thus, affirm the decision in
the Next Gen TV Report and Order. We reject NCTA's request that we
should either delay establishing a sunset for the substantially similar
requirement or retain it indefinitely. As explained in the Next Gen TV
Report and Order, without an expiration date, this rule could become
stale and impede the very Next Gen TV programming innovations that we
seek to promote by authorizing the deployment of ATSC 3.0. In any
event, we note that only the ``substantially similar'' requirement will
expire and not the requirement to broadcast in 1.0, so viewers will not
lose access to ATSC 1.0 signals. Thus, contrary to NCTA's suggestion,
consumers will not need to invest in 3.0 technology before they are
ready. We also agree with Pearl TV that broadcasters understand their
communities and have strong market incentives to be responsive to their
needs, both to those viewers seeking the enhancements of ATSC 3.0
service and those choosing to continue watching in ATSC 1.0 format.
Therefore, we expect broadcasters will use any additional flexibility
resulting from the rule's eventual sunset to offer innovative
programming on their ATSC 3.0 signals, rather than to ``diminish[] the
quality of the content on their ATSC 1.0 simulcast signal,'' as NCTA
fears.
43. While we acknowledge that there have been limited marketplace
developments since the Next Gen TV Report and Order was released in
November 2017, given the dynamic nature of the broadcast and consumer
electronics industries, we find a better approach is to defer a
decision regarding any extension until the year prior to the current
sunset. We find this approach to be particularly sound given that it
accounts for unanticipated events, such as the novel coronavirus
(COVID-19), whose impact we are unable to discern at this time. We
note, prior to the recent pandemic, the industry expected that many
stations would begin broadcasting in ATSC 3.0 this year. According to
NAB and Pearl TV, broadcasters intended to launch ATSC 3.0 service in
61 markets in 2020. It is not clear whether these plans remain
intact.\28\ Moreover, although consumer reception equipment is not
currently commercially available, the industry has represented that
such equipment will be available to consumers in the fourth quarter of
this year. Again, we do not know whether this target holds true today.
Thus, we will continue to monitor the ATSC 3.0 marketplace and, when we
get closer to the sunset date, we will initiate a proceeding to
determine whether it is necessary to extend the substantially similar
requirement.
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\28\ That is, we do not know the extent to which the pandemic
has affected broadcasters' plans for ATSC 3.0 deployment.
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2. ATSC A/322 Standard Sunset
44. We dismiss and, on alternative and independent grounds, deny
NCTA's request to reconsider the five-year sunset of the requirement
that broadcasters' primary free over-the-air Next Gen TV video
programming streams adhere to the ATSC A/322 standard.\29\ While we
retain the March 6, 2023, sunset for this rule, approximately one year
before the rule is set to expire we will seek comment on whether it
should be extended based on marketplace conditions at that time.\30\
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\29\ NCTA contends in its petition that the Commission's
requirement to comply with the A/322 standard ``arbitrarily lifts .
. . after five years.'' Moreover, NCTA's argument that there have
been limited marketplace developments since 2017 applies equally to
the A/322 standard sunset.
\30\ The amendments to 47 CFR 73.682(f), including the
incorporation of the A/322 standard, took effect on March 5, 2018,
i.e., 30 days after the rule's publication in the Federal Register.
We note that the rule incorrectly reflects a sunset date of February
2, 2023, instead of March 6, 2023, which date is five years from the
effective date of the rule (pushed to the next business day). We
take this opportunity to correct this mistake and amend 47 CFR
73.682(f) to reflect the true sunset date.
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45. In the Next Gen TV Report and Order, the Commission
incorporated two parts of the ATSC 3.0 ``physical layer'' standard into
the rules: (1) ATSC A/321:2016 ``System Discovery & Signaling'' (A/
321), which is the standard used to communicate the RF signal type that
the ATSC 3.0 signal will use, and (2) A/322:2017 ``Physical Layer
Protocol'' (A/322), which is the standard that defines the waveforms
that ATSC 3.0 signals may take. With respect to the A/322 standard, the
Commission applied the standard only to a Next Gen TV station's primary
free over-the-air video programming stream and incorporated it by
reference into the rules for a period of five years, unless the
Commission extends the requirement via rulemaking. The Commission
decided that it was not appropriate at the time ``to require
broadcasters to adhere to A/322 indefinitely,'' explaining that ``the
ATSC 3.0 standard could evolve, and stagnant Commission rules could
prevent broadcasters from taking advantage of that evolution.'' In
establishing a sunset for A/322 compliance, the Commission sought to
``balance [its] goals of protecting consumers while promoting
innovation.''
46. In its petition, NCTA repeats its and other commenters' earlier
argument that we should incorporate the A/322 standard into our rules
without a sunset date. NCTA claimed that the Commission's decision to
sunset
[[Page 43487]]
compliance with the A/322 standard was arbitrary. NCTA restated the
Commission's recognition that ``device manufacturers and MVPDs may not
be able to reliably predict what signal modulation a broadcast is using
unless broadcasters are required to follow A/322'' and asserted that
the Commission ``offer[ed] no compelling reason to believe that the
need for that certainty will vanish in 2023.''
47. The Commission fully considered this issue in the Next Gen TV
Report and Order and decided to require compliance with the A/322
standard only for a transitional period, after which the requirement
will sunset absent Commission action to extend it. Because NCTA repeats
arguments that have already been considered, we dismiss NCTA's Petition
on this issue. On alternative and independent grounds, we deny NCTA's
Petition on this issue because we disagree that the Commission erred.
Thus, we affirm the decision in the Next Gen TV Report and Order. We
reject NCTA's claim that the Commission's decision to sunset compliance
with the A/322 standard was arbitrary. In establishing a sunset for A/
322 compliance, the Commission sought to balance the competing goals
raised in the record of providing certainty to device manufacturers,
MVPDs, and consumers while promoting broadcaster innovation.\31\ The
Commission determined five years struck the right balance at the time
to ensure stations had ``a reasonable opportunity to implement Next Gen
TV broadcasting'' before the A/322 requirement sunsets. We expect that
once broadcasters begin to implement the ATSC 3.0 standard in
compliance with A/322, it will establish a measure of certainty for
device manufacturers and MVPDs. Although device manufacturers, MVPDs,
and consumers may want continued certainty, we think at some point the
rule must sunset to allow for broadcast innovation outside of the A/322
standard. Even when the rule sunsets, as a practical matter,
broadcasters will have to coordinate with device manufacturers and
MVPDs if they want to deviate from A/322 to ensure their broadcasts can
be received and viewed on devices and MVPD systems. We also note that
broadcasters have no incentive to change their implementation of ATSC
3.0 in a way that would render existing consumer equipment obsolete.
Finally, consistent with our decision above concerning the
``substantially similar'' sunset, we will wait to consider the state of
the marketplace a year before the rule sunsets to determine whether
there is any need to extend it.
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\31\ The Next Gen TV Report and Order explained the Commission's
intent to ``establish a period of certainty for manufacturers,
MVPDs, and consumers that will prevent broadcasting standards from
splintering and will speed the overall adoption of ATSC 3.0.''
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B. High Definition (HD) Service and Notice to Viewers
48. We dismiss and, on alternative and independent grounds, deny
NCTA's request to require broadcasters to simulcast ATSC 1.0 signals in
high definition (HD) format to the extent they are currently
broadcasting such signals in HD. We also dismiss and, on alternative
and independent grounds, deny ATVA's request to require a station to
provide prior notice to viewers and MVPDs before changing its signal
format or picture quality.
49. In its petition, NCTA repeats its earlier request in this
proceeding to require Next Gen TV broadcasters that are currently
broadcasting in HD to continue to provide HD service on 1.0 simulcast
signals. NCTA asserts that the Commission erred in not doing so and by
instead relying on broadcasters' marketplace incentives.\32\
Specifically, NCTA contends that the Commission's acknowledgement in
the Next Gen TV Report and Order that ``stations may have less capacity
for HD programming'' because of local simulcasting partnerships
``undermines [the Commission's] conclusion that a rule is unnecessary
because broadcasters have `market-based incentives' to continue to
provide HD programming on the ATSC 1.0 signal.'' NCTA further contends
that the Next Gen TV Report and Order ``does not acknowledge the harms
to consumers identified in [NCTA's] comments, much less explain why
they are outweighed by a broadcaster's voluntary experimentation with
ATSC 3.0.'' \33\
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\32\ NCTA states that ``[b]ecause a high definition (HD) ATSC
1.0 signal consumes more bandwidth than a standard definition ATSC
1.0 signal, there is reason to fear that broadcasters launching an
ATSC 3.0 signal will have strong incentives to degrade their over-
the-air HD ATSC 1.0 signal so that more streams can be squeezed into
another 6 MHz channel.''
\33\ NCTA asserts that ``if a broadcaster has voluntarily chosen
to transmit its 1.0 signal in HD, it should not be allowed to
downgrade that signal to SD at least in the initial phases of
launching a 3.0 signal'' because ``[s]uch downgrading would deprive
viewers of the programming to which they have become accustomed and
would force them and MVPDs to incur costs to recapture the HD
quality that they have come to expect.''
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50. The Commission fully considered this issue in the Next Gen TV
Report and Order and decided not to require Next Gen TV broadcasters
that are currently broadcasting in HD to continue to provide HD service
on 1.0 simulcast signals. Because NCTA repeats arguments that have
already been considered, we dismiss NCTA's Petition on this issue. On
alternative and independent grounds, we deny NCTA's Petition on this
issue because we disagree that the Commission erred. Thus, we affirm
the decision in the Next Gen TV Report and Order. As explained in the
Next Gen TV Report and Order, the Commission's existing rules do not
require broadcasters to provide their signals in HD and they can change
format at any time.\34\ We acknowledge that a broadcaster seeking to
meet its community's demands for ATSC 3.0 service (including 4K or
Ultra High Definition format) may choose to deploy ATSC 3.0 service,
even if that means it will be able to air an ATSC 1.0 simulcast signal
only in SD format. We also recognize that this may mean that consumers
who want to continue to receive HD programming will need to purchase a
3.0 converter device. However, we find such decisions would be a
response to competitive marketplace conditions, not contrary to them.
We agree with NAB that ``broadcasters have strong market incentives to
maintain HD service to the maximum extent possible.'' Broadcasters that
choose to deploy 3.0 service even though they will only be able to
simulcast an ATSC 1.0 signal in SD will likely be doing so to meet
consumer demands for 4K/UHD service and other enhancements, and we
believe that broadcasters should have the flexibility to innovate and
respond to marketplace demands.\35\ We agree with broadcasters that
mandating HD format for 1.0 simulcasts could hamper the deployment of
3.0 service to communities in which there is significant market demand
for such service. We thus decline to substitute our own judgment for
that of local television stations that best know their communities'
needs. Accordingly, we remain unpersuaded that new rules are needed to
mandate HD service on simulcasts.
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\34\ Although NCTA seeks the status quo for broadcasters
currently broadcasting in HD, the status quo includes the right to
change format at any time.
\35\ As Pearl TV explains, ``[l]ocal stations will consider the
types of technology their viewers have and their viewers' appetite
for various options as they weigh the trade-offs of different
deployment approaches.''
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51. In its Petition, ATVA asks the Commission to reconsider its
decision not to require stations to provide prior notice to viewers and
MVPDs before changing their signal formats on their
[[Page 43488]]
1.0 simulcasts.\36\ The Commission fully considered this issue in the
Next Gen TV Report and Order and decided not to require stations to
provide such notice. Because ATVA repeats arguments that have already
been considered, we dismiss ATVA's Petition on this issue. We also
reject ATVA's argument that its request involves a new fact that
justifies reconsideration. ATVA contends that the Commission's decision
not to require prior notice in this regard ``constitutes a `material
fact' that was `not known' to ATVA until the Order was released''
because the draft order the Commission circulated a few weeks before it
adopted the final Order would have required broadcasters to provide
such notice. We disagree. A draft order the Commission circulates
before adopting a final order is not binding. We agree with NAB that
``ATVA's suggestion that any changes from the draft to the final order
serve as a basis for reconsideration would be an unworkable standard
that would greatly burden the Commission and its staff.'' Given that
another commenter was able to make the argument in favor of a notice
requirement for HD service, we see no reason ATVA could not have done
so as well.
---------------------------------------------------------------------------
\36\ We note that this issue was raised by another commenter in
this proceeding.
---------------------------------------------------------------------------
52. On alternative and independent grounds, we deny ATVA's Petition
on this issue and affirm our findings on this issue in the Next Gen TV
Report and Order. As discussed in the Next Gen TV Report and Order,
broadcasters may have legitimate market incentives to deploy 3.0
service even though they will only be able to simulcast in SD. In these
situations, viewers will continue to receive 1.0 service in SD, as is
required by our rules, so we see no need for notice requirements like
those mandated for stations that relocate their ATSC 1.0 signals.
Instead, we will rely on broadcasters' market incentives to inform
viewers how they can receive Next Gen TV service enhancements.\37\ To
the extent MVPDs are concerned, there is nothing to prevent them from
providing notice to their subscribers that a station's channel is no
longer being provided in HD as a result of the broadcasters' decision
to deploy 3.0 service.
---------------------------------------------------------------------------
\37\ We note that there is nothing in our rules that prohibits
stations changing their signal format without notice. Indeed, ATVA
concedes as much. ATVA contends that the ATSC 3.0 transition
represents a special case in which broadcasters may have an
incentive to degrade their signals. We are not persuaded and see no
reliable record evidence to suggest that broadcasters are likely to
change signal formats in the manner that ATVA suggests.
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C. LPTV/Translator Exemption
53. We dismiss and, on alternative and independent grounds deny,
ATVA's request that the Commission reconsider its decision in the Next
Gen TV Report and Order to exempt LPTV and TV translator (LPTV/
translator) stations from the local simulcasting requirement.
54. In its Petition, ATVA repeats its earlier opposition to
permitting LPTV/translator stations to transition directly to ATSC 3.0
and contends that this decision constituted ``material error.'' (ATVA
argues that ``allowing low power stations to flash-cut causes exactly
the same harm as does allowing full power stations to flash cut--
especially since a large and increasing number of stations maintain
major-network affiliations.'') The Commission fully considered this
issue in the Next Gen TV Report and Order and, based on the record,
decided to exempt such stations from the local simulcasting
requirement. Because ATVA repeats arguments that have already been
considered, we dismiss ATVA's Petition on this issue. On alternative
and independent grounds, we deny ATVA's Petition on this issue because
we disagree that the Commission erred in this regard and affirm the
decision in the Next Gen TV Report and Order. In addition, we reject
ATVA's contention that the Commission should adopt a waiver approach
for LPTV/translator stations instead of maintaining a blanket
exemption. We continue to believe that a class-based exemption from the
simulcast requirement for LPTV/translator stations is more appropriate
in this situation than the waiver approach suggested by ATVA. As ATVA
concedes, a waiver process for LPTV/translator stations would be an
inefficient and burdensome means of providing widespread relief to
LPTV/translator stations. Such a process would slow deployment of 3.0
service to the public, and, ultimately, is unnecessary because we can
rely on market incentives to protect viewers against significant LPTV/
translator service loss.
55. In any case, ATVA appears to be primarily concerned with
precluding direct transitions by LPTV/translator stations that are
affiliated with a Big-4 network (i.e., ABC, CBS, FOX, NBC).\38\
According to staff review of S&P data on February 19, 2020, only about
2.5 percent of LPTV stations are affiliated with a Big-4 network.\39\
We agree with LPTV/translator commenters that requiring thousands of
simulcast waiver requests because of a limited number of Big-4
affiliated LPTV/translator stations that might choose to transition
directly to ATSC 3.0 would be inefficient and unnecessarily burdensome
for both LPTV/translator stations as a whole and Commission staff who
would need to process potentially thousands of such requests. Moreover,
even if some of these Big-4 network affiliated stations have greater
viewership and resources than unaffiliated LPTV/translator stations, it
still would be the exception rather than the rule that an LPTV/
translator station would both be able to find a suitable simulcast
partner and to afford simulcasting.\40\ We agree with LPTV/translator
commenters that LPTV/translator stations affiliated with a Big-4
network will have strong market incentives to maintain 1.0 service
because of their reliance on advertising revenues. Consequently, we
agree with the LPTV/translator groups that ``[o]ut of necessity these
few LPTV/translator stations [affiliated with top four networks] will
simulcast voluntarily if and when they transition to ATSC 3.0,'' a
consideration that lends further support to our prior conclusion that a
class-based exemption for LPTV/translator stations is more appropriate
than a waiver process.
---------------------------------------------------------------------------
\38\ ATVA acknowledges that a waiver process would ``increase
costs and burdens on low power broadcasters at least to some
extent'' and therefore states that it would ``not object to
reasonable steps to relieve such burdens for LPTV/translator
stations unaffiliated with a Big Four network, such as presumptions
in favor of waivers in certain cases, shot-clocks, and paperwork
simplification.'' We note that ATVA previously argued in its reply
comments and an ex parte to the Next Gen TV NPRM that it took ``no
position'' on whether the simulcast requirement should apply to an
LPTV/translator or Class A TV station, if such station ``is not
carried by any MVPD, is not required to be carried by any MVPD under
the must-carry statute, and remains unaffiliated with any network.''
\39\ According to staff review of S&P data on February 19, 2020,
about 46 of the 1,892 LPTV stations are affiliated with a Big-4
network. We note that this data is consistent with the data provided
by ATVA, which stated, based on its review of 2017 SNL Kagan data,
that about 55 LPTV and Class A stations were affiliated with a Big-4
network in September 2017. (As we do not exempt Class A stations, we
did not include the 14 of 387 Class A stations affiliated with a
Big-4 network in our total.) We note that the Next Gen TV Report and
Order incorrectly indicated that there were 258 LPTV stations in
September 2017. In fact, there were 1,964 LPTV stations in September
2017.
\40\ This is because LPTV/translator stations generally serve
rural, remote, and isolated areas that are not served by other
stations. Indeed, as PTV points out, such is the nature and purpose
of TV translators.
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56. Finally, we also agree with LPTV/translator commenters that
LPTV/translator stations would better serve their role as initial 3.0
hosts for full power stations if they were immediately available
through an exemption, rather than having to request a waiver prior to
becoming available to serve as 3.0 hosts. Indeed, Alliance points out
that the
[[Page 43489]]
costs and uncertainty of a waiver process would not only slow 3.0
deployment, but also potentially dissuade LPTV/translator stations from
seeking such relief.
D. Retransmission Consent Issues
57. We dismiss and, on alternative and independent grounds deny,
the requests by ATVA and NCTA to adopt new rules related to the
voluntary carriage of 3.0 signals through retransmission consent.
Specifically, ATVA repeats its request to require separate negotiations
for first-time carriage of ATSC 3.0 signals, and NCTA repeats its
request to prohibit broadcasters from using retransmission consent
negotiations to obtain carriage of their ATSC 3.0 signals by
withholding the ATSC 1.0 signal.
58. ATVA and NCTA merely repeat their earlier concerns that Next
Gen TV broadcasters could use the retransmission consent process to
compel carriage of 3.0 signals before consumer demand and market
circumstances warrant. ATVA contends that it was a ``material error''
for the Commission not to require separate negotiations for first-time
MVPD carriage of ATSC 3.0 signals. NCTA contends that it ``makes no
sense'' for the Commission to have concluded that it is premature to
address any issues that may arise with respect to the voluntary
carriage of ATSC 3.0 signals, saying MVPDs are at risk now of having to
``prematurely invest in ATSC 3.0 technology.'' ATVA also disagrees with
the Commission that it is premature to address such issues, citing some
examples it previously provided in the proceeding where broadcasters
have already began to seek bundling arrangements in contract
negotiations.
59. The Commission fully considered this issue in the Next Gen TV
Report and Order and declined to adopt new rules related to the
voluntary carriage of 3.0 signals through retransmission consent. We
agree with NAB that ``NCTA and ATVA offer nothing more in their
petitions than a summary of their previous arguments.'' Because NCTA
and ATVA repeat arguments that have already been considered, we dismiss
their Petitions on this issue. On alternative and independent grounds,
we deny the NCTA and ATVA Petitions on this issue because we disagree
that the Commission erred in this regard and affirm the decision in the
Next Gen TV Report and Order. We continue to believe that it is
premature to address any issues that may arise with respect to the
voluntary carriage of ATSC 3.0 signals before broadcasters begin
widespread transmission in this new voluntary standard. Determining
whether our retransmission consent rules have been violated in the
context of a particular negotiation is inherently a fact-specific
inquiry. There is no basis in this record for us to adopt rules of
general applicability. To the extent a cable operator or satellite
carrier believes that the Commission's retransmission consent rules
have been violated, they may file a complaint.
E. Patent Issue
60. We dismiss and, on alternative and independent grounds deny,
NCTA's request to reconsider the Commission's decision in the Next Gen
TV Report and Order not to require that patents relevant to the ATSC
3.0 standard must be licensed on a reasonable and non-discriminatory
(RAND) basis.\41\ The Commission fully considered this issue in the
Next Gen TV Report and Order and rejected requests for such a
requirement. Because NCTA's arguments have already been considered, we
dismiss their Petitions on this issue.
---------------------------------------------------------------------------
\41\ NCTA repeats its earlier request in this proceeding for the
Commission to require RAND licensing.
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61. On alternative and independent grounds, we deny NCTA's
Petitions on this issue and affirm the decision in the Next Gen TV
Report and Order. We disagree with NCTA's contention that the
Commission's decision not to require RAND licensing for standards-
essential patents is inconsistent with the Commission's decision
approving the current DTV standard, ATSC 1.0. Although we do not
believe that different approaches in the two contexts would necessarily
be a cause for reconsideration, especially because ATSC 3.0 is
voluntary at this time, we agree with NAB and ONE Media that the
decision is consistent with the Commission's decision in the DTV
context. In the order adopting the ATSC 1.0 standard for digital
television broadcasting, the Commission stated that it did not believe
that licensing of the patents for the ATSC standard would impede the
development of DTV products. The Commission also stated that the
adoption of the standard was ``premised'' on ``reasonable and non-
discriminatory'' licensing, but determined that Commission rules were
not necessary. The Commission emphasized that if a problem with patent
licensing arises and is brought to the Commission's attention, it would
``consider it and take appropriate action.'' Similarly, in the Next Gen
TV Report and Order, the Commission observed that the ATSC requires a
commitment to RAND licensing and stated that it would ``monitor how the
marketplace handles patent royalties for essential patents.'' Thus, we
find the two decisions are consistent.
V. Procedural Matters
A. Final Regulatory Flexibility Act Analysis
62. As required by the Regulatory Flexibility Act of 1980 (RFA), as
amended, an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Further Notice of Proposed Rulemaking in this
proceeding. The Federal Communications Commission (Commission) sought
written public comment on the proposals in the FNPRM, including comment
on the IRFA. The Commission received no comments in response to the
IRFA. This present Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA. We note that this FRFA addresses only the matters
considered in the Second Report and Order portion of the Second Report
and Order and Order on Reconsideration. No FRFA is necessary for the
Order on Reconsideration portion. The only rule revisions adopted in
the Order on Reconsideration are made to accurately reflect the sunset
dates adopted in the 2017 Order. Because these rule changes are
editorial and non-substantive, we find good cause to conclude that
notice and comment are unnecessary for their adoption. Because these
revisions do not require notice and comment, the Regulatory Flexibility
Act does not apply to these changes. We also note that a FRFA adopting
these sunset dates was included with the 2017 Order.
1. Need for, and Objectives of, the Report and Order
63. In the first Next Gen TV Report and Order, the Commission
authorized television broadcasters to use the Next Gen TV transmission
standard, also called ``ATSC 3.0'' or ``3.0,'' on a voluntary, market-
driven basis. ATSC 3.0 is the new TV transmission standard developed by
the Advanced Television Systems Committee as the world's first internet
Protocol (IP)-based broadcast transmission platform. The Commission
determined in the Next Gen TV Report and Order that broadcasters that
deploy ATSC 3.0 generally must continue to deliver current-generation
digital television (DTV) service, using the ATSC 1.0 transmission
standard, also called ``ATSC 1.0'' or ``1.0,'' to their viewers through
local simulcasting. Specifically, the Commission required full power
and Class A TV stations
[[Page 43490]]
deploying ATSC 3.0 service to simulcast the primary video programming
stream of their ATSC 3.0 channel in an ATSC 1.0 format.
64. The Commission determined in the Next Gen TV Report and Order
that the local simulcasting requirement is crucial to the deployment of
Next Gen TV service in order to minimize viewer disruption. This is
because the Next Gen TV standard is not backward-compatible with
existing TV sets or receivers, which have only ATSC 1.0 and analog
tuners. This means that consumers will not be able to view ATSC 3.0
transmissions on their existing televisions without additional
equipment. Thus, it is critical that Next Gen TV broadcasters continue
to provide service using the current ATSC 1.0 standard to deliver DTV
service while the marketplace adopts devices compatible with the new
3.0 transmission standard in order to avoid either forcing viewers to
acquire new equipment or depriving them of television service. Because
a TV station cannot, as a technical matter, broadcast in both 1.0 and
3.0 format from the same facility, local simulcasting will be
effectuated through voluntary partnerships that broadcasters that wish
to provide Next Gen TV service must enter into with other broadcasters
in their local markets. Next Gen TV broadcasters must partner with
another television station (i.e., a temporary ``host'' station) in
their local market to either: (1) Air an ATSC 3.0 channel at the
temporary host's facility, while using their original facility to
continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC
1.0 simulcast channel at the temporary host's facility, while
converting their original facility to the ATSC 3.0 standard in order to
provide a 3.0 channel.
65. The Commission in the Next Gen TV Report and Order established
a process for considering applications to deploy ATSC 3.0 service,
which included, among other requirements, establishing coverage
requirements for a Next Gen TV station's ATSC 1.0 simulcast signal. The
Commission's ATSC 1.0 simulcast coverage requirement sought to minimize
disruption to viewers resulting from the voluntary deployment of ATSC
3.0 by recognizing that if a station moves its ATSC 1.0 signal to a
partner simulcast host station with a different transmitter location,
some existing over-the-air (OTA) viewers may no longer be able to
receive the 1.0 signal. Among other obligations, the Commission
required the Next Gen TV station to select a partner 1.0 simulcast host
station that is assigned to its same DMA and from which it would
continue to provide ATSC 1.0 simulcast service to its entire community
of license.
66. While the Commission's rules require that all full power and
Class A TV stations that convert their existing facility to ATSC 3.0
are required to provide an ATSC 1.0 simulcast signal that covers a
station's entire community of license, the Commission recognized that
in certain circumstances such an arrangement may not be viable and in
order to facilitate the voluntary deployment of ATSC 3.0 service
established a waiver standard for the ATSC 1.0 simulcast requirement.
Specifically, the Commission stated that it would favor requests for
waiver of the obligation to provide ATSC 1.0 simulcast service if the
station can demonstrate both that (1) it has ``no viable local
simulcasting partner'' in its market; and (2) it will ``make reasonable
efforts to preserve 1.0 service to existing viewers in its community of
license and/or otherwise minimize the impact on such viewers (for
example, by providing free or low cost ATSC 3.0 converters to
viewers).'' Specifically, the Commission stated it would consider
waiver requests from full power and Class A TV stations to transition
directly from ATSC 1.0 to ATSC 3.0 service on the station's existing
facility without providing an ATSC 1.0 simulcast service at all.
Alternatively, a station may request a waiver of the ATSC 1.0 simulcast
requirement so it could air an ATSC 1.0 simulcast signal from a partner
simulcast host that does not cover all or a portion of the station's
community of license or can provide only a lower signal threshold over
the station's community of license than that required by the rules.
67. In the Next Gen TV Further Notice, the Commission sought
comment on three topics relating to local simulcasting rules. First, it
sought further comment on issues related to waivers of, and exemptions
from, the local simulcasting requirement. In particular, the Commission
sought comment on whether further guidance should be provided about the
circumstances in which it would grant such a waiver, including how to
define whether a station has ``no viable local simulcasting partner''
and whether a station has taken ``reasonable efforts to preserve
service and/or minimize impact on viewers.'' Second, the Next Gen TV
Further Notice sought further comment on whether to let full power
broadcasters use channels in the television broadcast band that are
vacant to facilitate the transition to ATSC 3.0. Third, it tentatively
concluded that local simulcasting should not change the ``significantly
viewed status'' of a Next Gen TV station for purposes of determining
MVPD carriage.
68. In the Second Report and Order, we address the three issues
raised in the Next Gen TV Further Notice. First, we provide guidance on
how Commission staff will evaluate petitions for waiver of our local
simulcasting rules. Second, we decline at this time to permit
broadcasters to use vacant in-band channels for purposes of voluntary
ATSC 3.0 deployment. Third, we adopt our tentative conclusion that the
significantly viewed status of a Next Gen TV station should not change
if it moves its ATSC 1.0 simulcast channel to a host facility.
2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
69. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
3. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
70. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
71. The types of small entities that may be affected by the Second
Report and Order fall within the following categories: (1) Wired
Telecommunications Carriers; Cable Companies and Systems (Rate
Regulation); (2) Cable System Operators (Telecom Act Standard); (3)
Direct Broadcast Satellite Service; (4) Satellite Master Antenna
Television (SMATV) Systems, also known as Private Cable Operators
(PCOs); (5) Home Satellite Dish (HSD) Service, (6) Open Video Services;
(7) Wireless Cable Systems--Broadband Radio Service and Educational
Broadband Service; (8) Incumbent Local Exchange Carriers (ILECs) and
Small Incumbent Local Exchange Carriers; Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing; (9)
Audio and Video Equipment Manufacturing; (10) and Television
Broadcasting.
5. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
72. The Second Report and Order imposes no new reporting,
recordkeeping or other compliance
[[Page 43491]]
requirements beyond those already established in the first Next Gen TV
Report and Order.
6. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
73. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): ``(1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
small entities.''
74. As an initial matter, the decision to deploy ATSC 3.0 service
is a voluntary choice for each broadcaster. For this reason,
broadcasters, including small entities, do not need to undertake any
costs or burdens associated with providing ATSC 3.0 service unless they
choose to do so.
75. Local Simulcasting Waivers. The first Next Gen TV Report and
Order established a waiver standard for the local simulcast
requirement. Specifically, the Commission stated that it would favor
requests for waiver of the obligation to provide ATSC 1.0 simulcast
service if the station can demonstrate both that (1) it has ``no viable
local simulcasting partner'' in its market; and (2) it will ``make
reasonable efforts to preserve 1.0 service to existing viewers in its
community of license and/or otherwise minimize the impact on such
viewers (for example, by providing free or low cost ATSC 3.0 converters
to viewers).'' The Second Report and Order provides additional guidance
on how Commission staff will evaluate requests for waiver of the local
simulcasting rules. The waiver process provides broadcast television
stations, including small entities, with an alternative means of
deploying ATSC 3.0 service in a manner that would still achieve the
purpose of the local simulcasting requirement. The Second Report and
Order clarifies but does not adopt any new rules with respect to the
waiver standard. By clarifying the circumstances in which a waiver
request might be granted, the Commission is seeking to provide
predictability to broadcasters, including small entities, which should
reduce costs for broadcasters contemplating seeking waivers. In the
Second Report and Order, the Commission considered whether to exempt
noncommercial educational (NCE) TV stations and Class A TV stations
from the local simulcasting requirement. The Commission decided against
affording an exemption for these entities, preferring instead to rely
on the waiver standard to afford these stations with any additional
flexibility.
76. Temporary Use of Vacant Channels. In the Second Report and
Order, the Commission declined to adopt new rules to allow full power
broadcasters to use vacant channels in the television broadcast band as
transition channels in order to facilitate the deployment to ATSC 3.0
service. Accordingly, the Second Report and Order does not create or
change rules in this regard.
77. Significantly Viewed Status of Next Gen TV Stations. In the
Second Report and Order, the Commission decided that the significantly
viewed status of a Next Gen TV station should not change if it moves
its ATSC 1.0 simulcast channel to a temporary host facility. Under this
proposal, a commercial television station that relocates its 1.0
simulcast channel could not seek to gain significantly viewed status in
new communities or counties and such station could not lose
significantly viewed status in communities or counties for which it
qualified prior to the move of its 1.0 simulcast channel. By
maintaining the status quo in the significantly viewed context with
respect to ATSC 1.0 simulcast signals, the Commission avoids
complications and disruptions to MVPDs and broadcasters, including
small entities. The Commission reasoned that any changes in
significantly viewed status due to local simulcasting would be
temporary, and this approach will avoid disruptions to cable and
satellite television viewers who have come to rely on such signals.
This approach will not impose new mandatory carriage burdens on MVPDs
and avoids burdening MVPDs with numerous changes to their carriage
obligations.
B. Final Paperwork Reduction Act Analysis
78. 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 the Small Business
Paperwork Relief Act of 2002 (SBPRA), Public Law 107-198, see 44 U.S.C.
3506(c)(4).
C. Congressional Review Act
79. 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).
D. Additional Information
80. For additional information, contact Evan Baranoff,
[email protected], of the Media Bureau, Policy Division, (202) 418-
7142. Direct press inquiries to Janice Wise at (202) 418-8165.
VI. Ordering Clauses
81. It is ordered, pursuant to the authority found in sections 1,
4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403,
534, and 535 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338,
399b, 403, 534, and 535, this Second Report and Order and Order on
Reconsideration is hereby adopted, effective thirty (30) days after the
date of publication in the Federal Register.
82. It is further ordered that the Commission's Rules are hereby
amended as set forth in Appendix B and will become effective 30 days
after publication in the Federal Register.
83. It is further ordered that pursuant to sections 4(i) and 405 of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 405, and
Sec. 1.429 of the Commission's rules, 47 CFR 1.429, NCTA's and ATVA's
Petitions for Reconsideration are dismissed and, on alternative and
independent grounds, denied.
84. It is further ordered that the Commission shall send a copy of
this Second Report and Order and Order on Reconsideration in a report
to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Parts 73 and 74
Communications equipment, Television.
[[Page 43492]]
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons stated in the preamble, the Federal Communications
Commission amends 47 CFR parts 73 and 74 as follows:
PART 73--RADIO BROADCAST SERVICES
0
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.
Sec. 73.682 [Amended]
0
2. Amend Sec. 73.682(f)(2) by removing ``February 2, 2023'' and adding
in its place ``March 6, 2023''.
0
3. Amend Sec. 73.3801 by adding paragraph (b)(3) to read as follows:
Sec. 73.3801 Full Power Television Simulcasting During the ATSC 3.0
(Next Gen TV) Transition.
* * * * *
(b) * * *
(3) The ``substantially similar'' requirement in paragraph (b)(1)
of this section will sunset on July 17, 2023.
* * * * *
0
4. Amend Sec. 73.6029 by adding paragraph (b)(3) to read as follows:
Sec. 73.6029 Class A Television Simulcasting During the ATSC 3.0
(Next Gen TV) Transition
* * * * *
(b) * * *
(3) The ``substantially similar'' requirement in paragraph (b)(1)
of this section will sunset on July 17, 2023.
* * * * *
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
5. The authority for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and
554.
0
6. Amend Sec. 74.782 by adding paragraph (b)(3) to read as follows:
Sec. 74.782 Low Power Television and TV Translator Simulcasting
During the ATSC 3.0 (Next Gen TV) Transition
* * * * *
(b) * * *
(3) The ``substantially similar'' requirement in paragraph (b)(1)
of this section will sunset on July 17, 2023.
* * * * *
[FR Doc. 2020-13837 Filed 7-16-20; 8:45 am]
BILLING CODE 6712-01-P
