FCC Circulates Draft Order Authorizing ATSC 3.0 Broadcasting

On October 26, 2017, the FCC released a draft Report and Order and Further Notice of Proposed Rulemaking that would permit TV broadcasters to use the next generation broadcast television transmission standard (“ATSC 3.0”) on a voluntary basis. The full Commission is scheduled to vote on the proposal at its November 16, 2017 open meeting.

TV broadcasters currently transmit their signals using ATSC 1.0. The Draft Order would authorize ATSC 3.0 as an optional television broadcast transmission standard and would require broadcasters to file applications and receive approval from the FCC before using the new standard. Broadcasters urged the FCC to allow use of ATSC 3.0 because the technology offers the promise of improved broadcast quality, reception on mobile screens, interactive services, and a variety of innovative services, such as geo-targeting emergency alerts and advanced accessibility. ATSC 3.0 proponents also sought minimal FCC regulation, so as to maximize flexibility for commercial arrangements to determine how ATSC 3.0 develops.

Significantly, ATSC 3.0 is not backward compatible with existing communications equipment. To reduce the impact of broadcasters’ adoption of the new standard on consumers (who would need new TVs or converters to watch ATSC 3.0 signals) and MVPDs (who would have to adapt their systems and technologies to be able to carry ATSC 3.0 signals), the FCC’s Draft Order takes several steps to ensure uninterrupted television service. Specifically, the Draft Order proposes:

Requiring most ATSC 3.0 broadcasters to maintain an ATSC 1.0 simulcast. This fundamental obligation would minimize the immediate disruption to, and burdens on, consumers and MVPDs, while enabling broadcasters to begin experimenting with ATSC 3.0 operation. To enable ATSC 1.0 and ATSC 3.0 simulcasting, the FCC envisions one broadcaster partnering with another broadcaster and moving either the ATSC 1.0 signal or the ATSC 3.0 signal to the shared broadcast facility. The “originating” station would remain the licensee of both its ATSC 1.0 and ATSC 3.0 signals, even though one of the signals would broadcast from a partnering “host” station. (The simulcast requirement would not apply to LPTV or translator stations, and the FCC would consider waivers in cases where a “host” station is not available.)
Requiring the ATSC 1.0 simulcast be similarly situated to the originating station. The FCC will require that the partnering host station’s transmitter for the ATSC 1.0 broadcast be assigned to the same DMA and cover the originating station’s community of license. The FCC plans to use its ATSC 3.0 licensing process to press broadcasters to maintain 95 percent of their original coverage area, announcing that when reviewing applications, it will “consider more favorably” arrangements with a service area loss of less than 5 percent. (More flexibility is granted for broadcasters that elect to transmit an ATSC 3.0 signal on a partnering host station’s facilities. The Draft Order permits those broadcasters to establish the 3.0 service anywhere within the same DMA as the existing station.)
Requiring ATSC 3.0 broadcasters to simulcast the “primary” stream in ATSC 1.0 for five years. The programming aired on the ATSC 1.0 simulcast channel must be “substantially similar” to the programming aired on the ATSC 3.0 channel. There are exceptions for features based on the enhanced capabilities of ATSC 3.0, like geo-targeted weather, emergency alerts and news, as well as advertisements and promotions for upcoming programming. However, this simulcast requirement applies only to the primary video programming stream (which the Commission expects to be the broadcaster’s most popular programming stream), not to the broadcaster’s digital subchannels, and the broadcaster is not required to broadcast the 1.0 ATSC signal in HD even if it had been broadcasting that signal in HD before adding the 3.0 ATSC signal. The potential elimination of over-the-air HD signals could adversely affect consumers who have come to expect HD quality and might pressure MVPDs to secure and deliver the HD version of a popular broadcast stream that would no longer be available over-the-air.
Retaining mandatory carriage or “must carry” rights on cable and satellite systems only for ATSC 1.0 signals and only to the extent of the original ATSC 1.0 signal. Not only does the Draft Order deny ATSC 3.0 signals any “must carry” rights during the transition period, it attempts to limit the “must carry” rights of ATSC 1.0 signals to their current geographic scope. In contrast to Channel Sharing arrangements made in connection with Incentive Auction, the Draft Order does not permit new or expanded carriage rights based solely on an ATSC 1.0 signal move to a partnering host station location, and cautions that the FCC is unlikely to rule favorably on a station’s requests to modify its “must carry” market to add new communities based on the host station’s location. This approach is premised on the notion that the ATSC 1.0 transition arrangement is temporary, and the FCC’s signal carriage rules should be applied in this context solely to maintain the status quo and to minimize viewer disruption. For similar reasons, the Draft Order tentatively concludes that the “significantly viewed” status of the originating station would travel with the ATSC 1.0 signal when it is relocated to a partner station during the transition, and would then revert back to the ATSC 3.0 after the transition.
Declining to impose special “retransmission consent” constraints on ATSC 3.0 negotiations. The Commission declined to adopt MVPD requests that it require separate ATSC 1.0 and ATSC 3.0 retransmission consent negotiations, so that broadcasters could not tie the carriage of ATSC 3.0 signals (and the related costs that MVPDs would incur to carry those signals) to carriage of the popular ATSC 1.0 signal. The Draft Order concludes that it would be premature to address these issues, thereby leaving MVPDs vulnerable to broadcasters compelling ATSC 3.0 carriage during the transition period through retransmission consent negotiations.
Incorporating parts of the ATSC 3.0 technical standard (A/321 on system discovery and signaling and A/322 on physical layer protocol) into FCC rules. Broadcasters had opposed the A/322 requirement but device manufacturers and MVPDs may not be able to reliably predict what signal modulation a broadcaster is using without it. The A/322 requirement applies only to a broadcaster’s primary video stream and would sunset five years from the effective date of the rules unless extended by the Commission.
Declining to adopt an ATSC 3.0 tuner mandate for new television receivers.
Applying broadcaster public interest obligations (including foreign ownership, political broadcasting, children’s programming, equal employment opportunities, public inspection file, indecency, sponsorship identification, contests, the CALM Act, Emergency Alert System and accessibility requirements) to ATSC 3.0 signals.
Requiring stations relocating their ATSC 1.0 signals to give MVPDs 90 days’ advance notice, and 120 days’ advance notice if the move occurs during the incentive auction repacking period.
Requiring broadcasters to provide advance on-air notices (at least 60 seconds per day of PSAs or crawls, beginning 30 days in advance of terminating ATSC 1.0 operations on the station’s existing facilities) to educate consumers about ATSC 3.0 service deployment and simulcasting.
Using the FCC’s existing methodology and planning factors (explained in OET Bulletin No. 69) to calculate interference from ATSC 3.0 to ATSC 1.0 signals, and to define the service area of an ATSC 3.0 signal and the ATSC 3.0 interference criteria for co- and adjacent channel interfering signals.
Exempting low-power TV and TV translator stations from the simulcasting requirement, and permitting case-by-case waivers if a station of any type has no viable simulcast partner.

The Further Notice seeks comment on the circumstances and standards for granting waivers of local simulcasting requirement and whether to exempt NCE and/or Class A stations from the requirement. Also, it seeks comment on whether to permit stations to use vacant channels remaining in the market after the incentive auction repack to serve as temporary host facilities for ATSC 1.0 or 3.0 programming by multiple broadcasters.

The proposal is on the FCC’s agenda for the November 16, 2017 open meeting.