What’s Next for Next Gen TV? FCC Seeks Comments on The Status of Next Gen TV and Sunset of Two Rules.

The FCC has just released a Third Further Notice of Proposed Rulemaking (FNPRM) https://docs.fcc.gov/public/attachments/FCC-22-47A1.pdf seeking comments on the state of the Next Generation Television (“Next Gen TV” or “ATSC 3.0”) transition, and on the scheduled sunset of two rules adopted in 2017.  Generally, the FNPRM seeks comments on the progress of broadcasters’ voluntary deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace, including whether holders of essential patents for the ATSC 3.0 standards are licensing such patents on reasonable and non-discriminatory terms.  In addition, comments are sought on the scheduled 2023 sunset of the rule requiring that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream.  Lastly, the FCC seeks comments on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the “ATSC A/322” technical standard.

        I. Background

Next Gen TV is the most recent broadcast TV transmission standard, which enables broadcasters to deliver new video and non-video services and enhanced content features to consumers.  Also known as “ATSC 3.0,” this standard merges the capabilities of over-the-air broadcasting with the broadband information delivery methods of the Internet, using the same 6 MHz channels presently allocated for traditional digital television (DTV) service.  The greater spectral capacity of the ATSC 3.0 standard and its Internet-Protocol  delivery component allows broadcasters to provide consumers with a higher quality television viewing experience, and has the potential to enable broadcasters to reach viewers on mobile screens as well as home TVs.  In addition, ATSC 3.0 allows broadcasters to offer enhanced capabilities, such as geo-targeting of emergency alerts and “hyper-localized” specific programming (including commercial advertisements), as well as to offer one-way datacasting services.

In November 2017, the FCC authorized television broadcasters to use the Next Gen TV transmission standard on a voluntary, market-driven basis.  However, the Commission required that broadcasters voluntarily deploying ATSC 3.0 service must continue to air at least their primary stream using the current-generation DTV transmission standard (“ATSC 1.0”) to their viewers through “local simulcasting” arrangements with other stations in their local market. This requirement was intended to minimize viewer disruption, since the Next Gen TV standard is not backward-compatible with pre-existing TV sets or receivers with ATSC 1.0 (or analog) tuners. At the same time, the Commission also adopted a requirement 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:  the programming must be the same, except for programming features that are based on the enhanced capabilities of ATSC 3.0 and promotions for upcoming programs.  This “Substantially Similar Rule” was intended to ensure that viewers do not lose access to their broadcast programming.  In order not to impede technical or programming innovations, though, the Substantially Similar Rule was set to sunset on July 17, 2023, unless extended by the Commission.

In regards to the Next Gen TV broadcast transmission standard, in 2017 the Commission required compliance with only two parts of the ATSC 3.0 suite of standards:  (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/322:2016 “Physical Layer Protocol” (A/322), which is the standard that defines the waveforms that ATSC 3.0 signals may take.  While this was to promote uniformity and incent the manufacture of equipment, the Commission decided that it was not appropriate at the time to require broadcasters to adhere to A/322 indefinitely, since the “ATSC 3.0 standard could evolve, and stagnant Commission rules could prevent broadcasters from taking advantage of that evolution.” Accordingly, the Commission ruled that the requirement to comply with the A/322 standard would expire on March 6, 2023, unless the Commission acted to extend it.

Lastly, in regards to licensing of patented ATSC 3.0 technology, the FCC originally recognized that the Advanced Television Systems Committee (ATSC), which developed the ATSC 3.0 standards, required patent holders to license the technology on reasonable and non-discriminatory terms.   But the FCC never developed specific rules to enforce this.

        II. Third FNRPM

The recently released Third FNPRM seeks comments on a number of broad issues:

A. Review of the ATSC 3.0 Marketplace 

It has now been over four years since the FCC authorized the provision of ATSC 3.0 service.   How has the marketplace developed?  The FNPRM seeks comments on five aspects of the deployment:  “(1) voluntary deployment of ATSC 3.0 service by broadcasters and the continued availability of ATSC 1.0 programming; (2) availability of ATSC 3.0 consumer TV sets and equipment; (3) consumer viewership of ATSC 3.0 signals; (4) MVPD carriage of ATSC 3.0 signals; and (5) status of ATSC 3.0 patent licensing.”

It will be interesting to see how the major entities promoting Next Gen TV describe the market place, as opposed to parties that feel that the marketplace has not had a chance to significantly develop, or that development has been stunted either by technology, economics or by business practices.

B. The Substantially Similar Rule

The FNPRM seeks comments on whether to retain the Substantially Similar Rule, or permit it to sunset in 2023.  As the FCC noted when adopting the requirement, “the purpose of the rule, in conjunction with the underlying requirement to simulcast in 1.0, is to protect 1.0 viewers from losing access to a Next Gen TV station’s programming when that station transitions its facility to 3.0.  While the underlying requirement that a Next Gen TV broadcaster must air a 1.0 signal (when deploying 3.0) ensures 1.0 viewers continue to receive some free OTA TV service during the transition, the substantially similar rule ensures that 1.0 viewers actually receive the same primary video programming as that aired on the 3.0 channel.”

We expect to see arguments on both sides of this issue, with some commenters urging the FCC to eliminate the rule to promote innovation and a free marketplace, and others urging extension of the rule to protect viewers.

C. The Requirement to Comply with the ATSC A/322 Standard.

The FNPRM seeks comments on whether to retain the requirement that Next Gen TV broadcasters’ primary video programming stream comply with the ATSC A/322 standard and, if so, for how long.   Additionally, if the FCC retains the requirement, should there be a new sunset date?  Here, the Commission must seek to balance providing certainty to consumers, television receiver manufacturers, and MVPDs, against the needs of technical innovation.  The FNPRM also notes that that the ATSC has updated the A/322 standard, most recently in 2021, with only ministerial but no substantive changes.  Perhaps the best approach would be for the FCC to follow the ATSC.

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                The comments to this FNRPM may have a significant impact on the development of the TV industry.   If you want more information on this proceeding, please contact your Fletcher Heald attorney.

FCC Sets Comment Period for Franken FM NPRM

The FCC has set the comment period in the FM6 (a/k/a Franken FM) proceeding.  Comments with respect to the FCC’s May 18th Notice of Proposed Rulemaking (NPRM) will be due on July 18th, 2022. Reply comments will be due on August 1, 2022. Those who wish to comment should refer to the filing instructions provided in paragraph 60 of the NPRM.

As discussed in our prior blog post, this NPRM concerns the future of FM6 stations, which are channel 6 LPTV stations providing analog audio. The Commission is weighing a proposal that would allow existing FM6 stations to continue operating subject to certain restrictions, but would not allow any new ones.

If you have any questions regarding this rulemaking or its impact, contact your Fletcher, Heald & Hildreth attorney.

Repacked Stations: Final Deadline for Submitting Invoices for Reimbursement

The Incentive Auction Task Force and Media Bureau (Bureau) has released a public notice reminding all low power TV and TV translator (LPTV/translator) stations, multichannel video programming distributors (MVPDs), and FM stations that they must submit all remaining invoices in the TV Broadcaster Relocation Fund no later than September 6, 2022.  All licensees are encouraged to submit invoices and initiate close-out procedures as soon as possible, however.

The FCC initially announced the close-out procedures on February 16, 2019 and announced the upcoming deadline in October 2020. Since entities were given ample notice of deadlines, extensions of the assigned invoice submission are only being granted to entities who provide evidence that circumstances requiring the extension were outside of its control.

An entity’s failure to complete construction in a timely manner and to make final submissions by the assigned deadlines could preclude that entity from receiving full reimbursement because unobligated amounts in the Fund must be rescinded to Treasury by July 3, 2023.

The Fund Administrator will initiate close-out for any entity that has failed to initiate the process by the invoice filing deadline assigned to that entity. Any unused allocations made to that entity’s account will be returned to the Fund and made available for allocation to other program participants.

Participants must retain documents for a period ending 10 years after the date they receive their final payments from the Reimbursement Fund. Additionally, entities may be selected for audits, data validations, and site visits at any time during the repack and reimbursement process.  All participants should be prepared to demonstrate that invoices submitted for reimbursement were actually paid.  As a part of participants’ close-out procedures, the Commission has been requesting proof of payment of a sample of the invoices for which reimbursement was made.  It is important that all reimbursement amounts received match up with payments actually made, or the FCC may demand the return of any amounts in excess of expenditures.

 

Should you have any questions about the invoice submission, please contact your friendly attorneys at Fletcher Heald & Hildreth.

FCC Considering Future of FM6 Stations

When the Federal Communications Commission meets on June 8, it is slated to issue a Notice of Proposed Rulemaking regarding FM6 stations, commonly referred to as “Franken FMs.”  The FCC has released a draft of the Notice of Proposed Rulemaking that is expected to be adopted at its June 8th meeting. This will be the fifth round of rulemaking regarding FM6 stations.  The proposal the Commission is considering would allow existing FM6 stations to continue to operate, but prohibit any new FM6 stations.

FM6 stations refer to channel 6 LPTV stations that provide an analog radio service that typically can be received on a standard FM receiver on about 87.7 MHz.

Since July 13, 2021, when all TV stations (including LPTVs) were required to cease analog video operations, the FCC has allowed certain Channel 6 LPTV stations operating with a  digital ATSC 3.0 format to continue providing an analog audio  “as an ancillary or supplementary service” pursuant to engineering STAs.  Those STAs impose several significant conditions.  By the FCC’s count, 13 such stations are currently operational.

The potential proposed rule under consideration by the Commission would effectively codify some of the current restrictions for currently operating FM6 stations and limit Franken FMs to those currently operating pursuant to STAs. The proposed restrictions include:

  • The stations must already be operating pursuant to an STA
  • The stations must have converted to ATSC 3.0 digital operations
  • The stations’ analog radio operations could only be conducted on 87.75 MHz
  • The stations may not interfere with any other users
  • The station’s programming may not exceed its LPTV coverage area
  • TV station must provide at least one stream of synchronized video and audioprogramming on the ATSC 3.0 portion of the spectrum at any time the station is operating
  • The stations’ technical facilities may not be modified
  • The stations may not be assigned or transferred

These provisions deviate slightly from the current STA restrictions, replacing the current requirement that similar populations be reached with the requirement that the FM6 coverage may not exceed the LPTV’s coverage area. The rule under consideration would not require written reports on compliance as required by the STAs, and replace a requirement that there must be one stream of synchronized audio and video 24/7 to one stream of synchronized audio and video any time the station is operating.

In addition to the above proposal, the Commission also seeks comment on whether to completely eliminate Television 6 (TV6) distance separation rules for Low Power FM radio, NCE FM Radio, Class D FM radio, and FM translator stations operating on the reserved band FM channels 201-220, or to revise and update for the post-digital transition. Proponents of this idea argue that because digital receivers are less vulnerable to FM induced TV6 interference, these rules are no longer necessary. The Commission notes that they have not received reports of interference to either TV or radio stations, but that the lack of reports poses the question of whether these rules are in fact unnecessary or they are just working as intended.

The Commission is also considering the adoption of a plan that would repurpose television channel 6 spectrum (82-88 MHz) for FM services. Instead of using the spectrum currently used by FM6 channels for TV, this spectrum could potentially accommodate up to 30 new FM stations. Proponents of this plan argue that this is a more efficient use of spectrum and that more channels would increase the diversity of programming offered. The Commission is seeking comment on potentially repurposing the channels, and specifically whether these potential new channels should be reserved for NCE stations.

In the proposed rulemaking, the Commission seeks to balance the concerns of a variety of broadcast groups. Among the issues they seek comment on are interference to other stations, efficient use of spectrum, and the preservation of local community programming broadcasted on these FM6 stations. If you have any questions regarding this rulemaking and its impact, contact your Fletcher, Heald & Hildreth attorney.

FCC Announces Legacy CORES to be Decommissioned July 15, 2022

On Friday, May 27th, the FCC issued a Public Notice announcing that the Legacy Commission Registration System (Legacy CORES) – currently used to obtain and update FRNs for individuals, licensees and other entities doing business with the FCC – would be decommissioned on Friday, July 15th, 2022 at 6pm. After that time, the current Commission Registration System (CORES2)- which has been available for use since 2016 – will be the only system available for obtaining and maintaining an FRN and will be used for all FRN-related transactions.  Users who have not already obtained a username and password in CORES2, will need to register with in CORES2 before July 15th to gain online access and manage their FRNs.

The Commission will continue to allow access to other Commission systems, including CORES2, using the FRN and password established in Legacy CORES. However, Users will be required to obtain a username and password through the FCC User Registration System as the Commission continues to update their systems. Once a CORES2 username and password are obtained, users may associate their FRNs with their CORES2 usernames.

For users with outstanding fees, the transition of that fee data to CORES2 will be staggered. Annual Regulatory Fees will transition on July 15th, 2022; Red Light Status Detail will transition August 5th, 2022; Universal Licensing System Payments will transition August 26th, 2022, and Application Fee Payments will transition November 18th, 2022.

For users who are not already registered in CORES2 and need assistance preparing for this transition, contact your Fletcher, Heald & Hildreth attorney.

Depp v. Heard – a Brief Legal Overview

Social media has been exploding with news about the defamation trial between Johnny Depp and Amber Heard in Fairfax County, Virginia. Fletcher, Heald  attorneys have considerable experience with this court and this type of claim. As such, we thought our Commlawblog readers might be interested in a breakdown of what is really going on here and why.

First, what is this case about?  Although one might think from social media that the case is about spousal abuse, that is really only an element of the proof necessary for the actual claims by each.  Despite the troubling testimony suggesting abuse by both parties, this case is actually more about reputational rather than physical harm.  Depp claims that he was defamed by Heard by three separate means – (1) through an online OpEd  that she wrote that was published in the Washington Post on December 18, 2018; (2) the publication of a print version of that same OpEd; and (3) by Heard’s retweeting of a link to that piece on December 19, 2018.  Heard, in turn, has a counterclaim based upon (1) Virginia’s Anti-SLAPP statute for defendants who believe that lawsuit was filed to intimidate; (2) defamation through statements made by Depp’s attorney, allegedly at Depp’s direction, in a Gentleman’s Quarterly (GQ) article dated November 2018; and (3) violation of Virginia’s Computer Crimes Act for harassment by computer through an alleged nationwide campaign to “harass, abuse, and discredit” Heard.

Second, why is the trial occurring in Fairfax County, Virginia given that neither of the parties live in Virginia (both are residents of California) and none of the alleged abuses occurred there?  The answer is twofold – first the Washington Post is printed in Springfield, Virginia, the digital version of the paper was created on a digital platform in Virginia, the newspaper “has wide circulation in Virginia and even publishes a Virginia local edition in which” the alleged defamatory statements appeared, and the Washington Post maintains two physical offices in Virginia.  Second, Depp contends that Heard “published the false and defamatory op-ed to promote her new movie which was in Virginia theatres for viewing by Virginia audiences.”

But even with that, why pick Virginia? The more likely reason is the perception, whether right or wrong, that Virginia has more a plaintiff-friendly defamation law and the perception that Virginia has a relatively weak “Anti-SLAPP” statute.  In fact, Virginia has been used in the past by other public figures to file defamation claims in cases that would be rejected in other jurisdictions, including by former Congressman Devin Nunes against Twitter, the New York Times, and CNN.

What do Depp and Heard have to prove in order to establish “Defamation” under Virginia law?   

To prevail in a defamation suit under Virginia law, a plaintiff need only establish the following:

1) the “publication” of

(2) an “actionable statement”

(3) made with the “requisite intent.”

The statements must be demonstrably false in order to be considered “actionable.” Furthermore, the statements must be factual in nature to be actionable.  By contrast, expressions of opinion are expressly protected by the First Amendment.

In the Depp case, the first element is easily established for both parties. The statements were made in the Washington Post and GQ, as well as in social media. “Publication” merely means that the statements were disseminated beyond just the two parties to the lawsuit.  However, the second and third elements are where there will be disputes.

Under the second element, a statement is only “actionable” if it is false.  Therefore, it will be up to the jury to determine whether the implied statement of Heard (if it is reasonably implied at all) that Depp was “abusive” was false.  As for Heard’s claim, she will have to prove to the jury that Depp’s counsel’s statement (if it was directed by Depp) that her statements were a “hoax” was false.  It would seem unlikely that both statements could be true.  In each case, the burden of proof to convince the jury that the statement is false is on the plaintiff.  A tie goes to the  defendant.

As for the third element, “requisite intent,” under U.S. Supreme Court precedent regarding statements on matters of public concern, a plaintiff must prove “actual malice” before damages can be awarded.  Under the landmark case of NY Times vs Sullivan, a finding of actual malice requires that the statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

In this case, both Depp and Heard would have to prove that the other specifically intended to cause harm in making these statements.  Given that Heard did not use Depp’s name in the OpEd, this may be tougher for Depp than Heard since the GQ statements made by Depp’s attorney mentioned Heard by name.  In the end, in both cases, the decision will come down to who does the jury believe more – Depp or Heard.

Why is there a week long pause in the trial?  This case was filed in March 2019.  Due to Covid, the trial was pushed off several times, as were all trials in Fairfax County, Virginia (including several for which Fletcher Heald was counsel).  Every year, the judges of Fairfax County have a Judicial Conference in which they discuss matters of concern between the fifteen judges on the court.  That conference was scheduled long ago for the week of May 9, 2022.  In order to obtain a beginning trial date in April 2022, the parties had to agree to this pause in the jury trial.

How long will the trial last?  This is one of the longest trials ever conducted in Fairfax County Circuit Court.  The trial began on April 12 and the trial judge has promised the jury that closing arguments will occur on May 27, before Memorial Day weekend.  Given that they will just receive the case before Memorial Day, the jury will have to return after Memorial Day to consider the verdict, which will likely be rendered that week.  No matter the final decision, the case will likely have profound effects both on the common law of defamation and legislation in both Virginia and beyond.    If you have questions about filing or defending a lawsuit in Virginia state or federal courts, do not hesitate to contact Fletcher Heald attorneys.

FCC to Update Rules to Allow Digital Generation and Verification of Antenna Directional Patterns

The FCC has released a draft Report and Order to amend its broadcast radio rules to allow the use of computer models to verify antenna directional patterns. Barring unexpected developments, the Report and Order will be adopted during the Commission’s May 19th open meeting

This proposed rule changes are great news for applicants – under the prior rules, applicants were required to submit tabulation of plot and measured relative field patterns of a directional antenna by building a mockup or scale model of the antenna and supporting structures. Instead of building these structures, applicants will now be able to use computer models—substantially decreasing the cost and time of pattern verification.

The great majority of commenters favored computer modeling, noting positive results on the accuracy of computer modeling. Although engineering firms will not be able to charge as much for directional antenna verification, several firms did support this proposal.

This rule change brings FM and LPFM stations into conformity with AM and DTV station licensing, which already allow for computer modeling to verify directional antenna performance. However, an important distinction from the AM and DTV rules are that FM and LPFM computer models must be performed by the antenna manufacturers. That limitation does not apply to AM and DTV applicants. The Commission did not set requirements for what software products must be used in this modeling, only that commercially available software be identified and custom software include a description of the software and methods sufficient for potential replication.

The Commission emphasizes that these rule changes will provide for more accurate proofs of performance and decrease the time and costs of verification for applicants. As you prepare to file license applications for FM and LPFM antennas, contact your FHH Law attorney for the most up-to-date requirements.

Media Bureau Announces Transition of Additional Filings to Licensing and Management System (LMS)

The FCC announced this week that various additional applications must soon be submitted through the LMS online electronic system. Specifically, commencing May 17, 2022, the following filings are required to be submitted through LMS:

  • FM Engineering Special Temporary Authority (STAs)
  • Request for Silent STA
  • Extension of Silent and Engineering STA
  • Suspension of Operations Notification
  • Resumption of Operations
  • AM and FM Digital Notification
  • Modification Dependent Carrier Level (MDCL) Notification
  • Change of Primary Station Notification
  • Tolling Notification
  • Reduced Power Notification
  • Pending Application Withdrawal

The filings listed above should no longer be filed via email. If they are, the FCC will dismiss them as procedurally defective.

The following applications, on the other hand, should still be sent to audiofilings@fcc.gov:

  • AM Application for Construction Permit for Commercial Broadcast Station on Form 301
  • AM Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station on Form 340
  • AM Applications for Broadcast Station License on Form 302
  • Initial AM Engineering STA
  • Change in official mailing address
  • Amendments to pending applications previously submitted in CDBS
  • Pleadings (Petitions to Deny, Informal Objections, Oppositions, Replies, Supplements, Petitions for Reconsideration and Applications for Review) concerning applications submitted through CDBS or audiofilings@fcc.gov.

If you have questions, don’t hesitate to contact us here at FHH Law.

Upcoming FCC Broadcast Deadlines for May – July

June 1, 2022

Television License Renewal Applications Due – Applications for renewal of license for television stations located in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming must be filed in LMS.  These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees.  Under the new public notice rules, television  stations filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks.  Once complete, a certification of broadcast, with a copy of the announcement’s text, must be posted to the Online Public Inspection File (“OPIF”) within seven days.

EEO Public File Reports – All radio and television station employment units with five or more full-time employees and located in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well. Per announced FCC policy, the reporting period may end ten days before the report is due (May 21), and the reporting period for the next year will begin on the following day.

July 10, 2022

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the second quarter of 2022 must be placed in the station’s online public inspection file.  The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program.  The issues may be either local or national, so long as they are of concern to the local community.

Class A Television Stations Continuing Eligibility Documentation – The Commission requires that all Class A Television Stations maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient.

FCC Open Meeting on April 21st

On April 21, 2022, the FCC will be hosting its monthly open meeting. The docket includes improving receiver performance, wireless emergency alerts, and two restricted adjudicatory matters.

The FCC will consider a Notice of Inquiry to promote more efficient use of spectrum through improved receiver interference immunity performance, thereby facilitating the introduction of new and innovative services. The Notice of Inquiry would develop an up-to-date record on the role of receivers in spectrum management. This notice would also lay the foundation for future Commission actions that can promote improvements in receiver performance.

The FCC will also consider a Further Notice of Proposed Rulemaking. Since its launch one decade ago, Wireless Emergency Alerts (WEA) has become an essential part of America’s emergency preparedness. WEAs have been used more than 61,000 times to warn the public about dangerous weather, missing children, and other critical situations through alerts on compatible cell phones and other mobile devices. On the 10th anniversary of WEA, the FCC seeks to further improve the effectiveness of this critical public safety tool by building on the Commission’s prior proposals and refreshing the record on whether it should require participating wireless providers to file public reports with the Commission on WEA’s reliability, speed, and accuracy.

The meeting will be available for public viewing via live feed on the FCC’s website.

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