The Federal Communications Commission (“FCC”) has issued a Second Report and Order and Order on Reconsideration, largely leaving intact the rules it adopted in 2017 authorizing television broadcast stations to implement the ATSC 3.0 technical standard, now known as “NextGen” TV.

Full Power and Class A TV stations converting to NextGen must continue to simulcast their programming in the currently deployed ATSC 1.0 format. That is normally done by channel-sharing with one or more other stations, where each station in the group transmits with either the 3.0 or 1.0 format and carries its own streams and the streams of other stations in that format. The FCC did not change the simulcast requirement; but recognizing that not every station will be able to find a simulcast partner, it provided guidance as to what it will require to waive the rule.

If there are two or fewer other stations in a station’s designated market area (“DMA”), the FCC will presume that the station cannot reasonably find a simulcasting partner, without requiring proof that no partner is available. A request to allow stations to certify that they asked all the other available stations and were turned down was rejected. The presumed availability of other stations is limited to stations of the same class – full power or Class A. Low Power Television (“LPTV”) and TV Translator stations are not counted as being available, although they may voluntarily be used for simulcasting provided that their signal coverage is sufficient.

The FCC turned down requests to exempt non-commercial educational full power stations (“NCE”) and all Class A stations from the simulcast requirements, as both station classes provide important services that should remain accessible to viewers. It estimates that 8% of non-commercial full power stations, 5% of commercial full power stations, and 71% of Class A stations will have two or fewer available simulcast partners and so will be able to qualify for a simulcasting waiver.

The fact that a station is carried on cable and/or satellite (“MVPD”) will not be sufficient to justify a waiver of the simulcast requirement. The FCC also did not change its earlier decision not to require simulcasting by LPTV stations, even those stations (not many in number) affiliated with a Big Four network.

If a station qualifies for a waiver and decides to convert to NextGen, it must take other steps to ensure the continued availability of its programming to viewers who do not have NextGen receivers. The FCC suggests giving away or selling converter devices at a low price to households that receive the station over-the-air. Only one converter per household is required. Although the requirement will apply only to viewers in the station’s community of license, the FCC encourages, and appears to expect, that converters will be made available to all viewers in a station’s noise-limited signal coverage area.

The earlier decision to allow ATSC 1.0 simulcasting to be in standard definition format and not high definition, was not changed, although of course high definition simulcasting is permitted.

The FCC also stressed that no NextGen signal has or will have MVPD must-carry rights, even if it delivers its programming to MVPDs by fiber in baseband format, which is neither ATSC 1.0 nor ATSC 3.0 and so is not affected by an over-the-air format change. However, the FCC will also not restrict the ability of TV stations to use their bargaining power in retransmission consent negotiations to get their ATSC 3.0 signal carried by MVPDs.

Although must-carry rights will not include NextGen signals, a station’s status as significantly viewed for purposes of MVPD carriage and MVPD copyright liability will be retained. There is nothing to stop an MVPD from petitioning the FCC to remove a station from the significantly viewed list, but such a petition will succeed only if new audience measurements show that over-the-air viewership has declined below the required threshold.

The FCC decided not to change its present sunset dates for the NextGen ATSC A/322 technical standard and the simulcasting requirement. All NextGen stations must adhere to the A/322 standard until March 6, 2023, and must simulcast in ATSC 1.0 and 3.0 until July 17, 2023 (except for ATSC 3.0 features, such as targeted advertising, not available in ATSC 1.0). The FCC said that it will re-examine these deadlines one year before the current deadline dates.

Nodding to objections by LPTV stations, “White Spaces” proponents, and wireless microphone users, all of which need open TV channels to survive, the FCC adhered to its previous decision not to allow NextGen stations to obtain temporary use of a second channel while the simulcasting requirement remains in effect.

Finally, the FCC decided not to attempt to take on the issue of patent royalty costs imposed on NextGen stations. That problem does not appear yet to be severe enough to generate FCC concern.

Some of the FCC’s decisions will facilitate conversion to NextGen; others may end up being barriers. Stations in Pittsburgh, Las Vegas, Phoenix, and Portland (Oregon), both full power and Class A, have already started or are close to starting NextGen service. Time will tell how easy or difficult the overall process turns out to be.